Under the FMLA, there are four methods which an employer
can use to determine whether an employee is eligible for 12 weeks leave in a 12
month period. Once the determination is made, it is critical that employees be
informed of the chosen method. In Thom
v. American Standard [an enhanced version of this opinion is available to lexis.com subscribers],
the 6th Circuit Court of Appeals awarded liquidated damages in a case involving
the discharge of an employee for unexcused absences where the method of
determination was not communicated to the employee.
At issue was whether the company used a "rolling" method or
a calendar method. The court found that at no time did the company advise
the employee during the FMLA process that his leave time would be governed by
the rolling method. The court noted that the first time Thom had actual
notice of the use by the company of the "rolling" method
was when the company's lawyers raised it as a defense to his lawsuit.
Thom serves as reminder that an employer must be able to document
the communication of it choice of method to determine eligibility to its
employees for FMLA leave. Certainly, any employee discussing use of FMLA
leave should be notified in writing of the method, and the employer should
obtain a written acknowledgment from the employee of notification. Ben
Franklin was right--a ounce of prevention is worth a pound of cure.
For additional Labor and Employment law
insights from John
Holmquist , visit the Michigan Employment Law
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