E-mail confusion leads to FMLA suit
July 21, 2009 by Sam NarisiPosted in: Employment law
An employee tells his boss he needs time off to care for a sick family member — but says he doesn’t want to use FMLA. How should the manager respond?
Here’s some guidance from a recent court case:
An employee missed a week of work to care for his hospitalized mother.
He sent his manager an e-mail, saying he needed “a couple days off” to make arrangements for her medical care. Also, he said, “I could apply for the family care act, which I do not want to do at this time,” referring to FMLA.
After getting the e-mail, the manager tried to call the employee — 14 times — during the following week. He got no answer or response. A week after the e-mail was sent, the employee finally returned the manager’s calls.
The manager told him he was fired. Company policy said missing work for more than two days without notifying a supervisor was grounds for immediate termination. Since the employee only said he’d be gone for “a couple days” and had already missed a week, the manager decided he’d violated the policy.
The employee sued, claiming his absences should’ve been protected under FMLA.
The company argued he said clearly in his e-mail that he didn’t want FMLA. But the employee claimed he still laid out the reasons for his absence, which notified the company he was eligible for FMLA. Therefore, he said, the company was still obligated to send him the appropriate forms and ask him if he wanted FMLA leave.
No notice obligation
The company said the case should be thrown out. The court agreed.
The judge noted that there have been several cases where employees have turned down FMLA leave, even though they were eligible — often because the employee wants to save leave for a future need.
In those situations, the court ruled, the employees forfeit protection for their absences and are subject to company policy.
When workers decide not use FMLA, employers aren’t obligated to try and persuade them otherwise, or to consider their absences protected anyway — as long as the employees are properly notified that they’re eligible and aren’t misled about their FMLA rights.
Cite: Righi v. SMC Corp. of America
Tags: e-mail, FMLA notice
July 21st, 2009 at 10:18 pm
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July 22nd, 2009 at 9:45 am
It’s not the employee’s decision whether or not to use FMLA just like it’s not their decision, other than PDL for their accrued vacation, to use their sick or vacation pay for the leave. If it’s the employer’s policy to designate FMLA for any employee missing a week or more of work then that’s the policy.
July 22nd, 2009 at 10:00 am
It is absolutely the employee’s choice to use or not use FMLA. It is an available option for them to use as they see the need. Perhaps this person was expecting a child later in the year and needed their FMLA for that time period and not for a “couple of days”. They have the decision to use a portion of their leave or not.
July 22nd, 2009 at 10:18 am
Regulation 29 CFR 825.208 states that In all circumstances it is the employer’s responsibiltiy to designate leave as FMLA qualifying and provide notice. If the employer knows the leave is FMLA qualifying they need to give notice to the employee. Unfortunately we have found in many cases that employees still view FMLA as a black mark against them, attendance records, etc. I feel the employer should have sent notification and explained to the employee that under the regulation they have a responsibility to designate the leave as FMLA.
July 22nd, 2009 at 12:04 pm
We have had ee’s either send an email or verbally say they don’t want to use FMLA leave. We then follow up with a letter stating that FMLA leave has been denied per their request and attached a copy of the email. By chance they wish to change their mind, we also send them the FMLA policy along with the certification form informing them they only have 15 days to complete the certification form should they wish to use FMLA leave. It keeps us covered, however, none of those ee’s has come back to us and said they changed their minds – they really don’t want the FMLA leave.
July 22nd, 2009 at 12:32 pm
Susanna, what planet are you from?? Your response is very confusing and provides the wrong information. It IS the employee’s decision whether or not to use FMLA in this case and HE further stated HE DID NOT WANT to apply it. Additionally, nowhere in this article did it state that it’s the employer’s policy to designate FMLA for employees missing a week or more of work. As far as I know, it is NEVER the employer’s policy to designate FMLA for their employees. Looks like you need to attend a some training seminar on FMLA and get your facts right.
July 22nd, 2009 at 12:34 pm
Sounds to me like the employee should have returned at least 1 of the 14 phone calls made…if even just to confirm how many days he needed to be gone instead of disappearing off the face of the earth for as long as he “felt” like it. That way he could have clarified with his employer the FMLA policies and what he was able or not able to do.
July 22nd, 2009 at 1:41 pm
Debie I think you are confusing designating leave as FMLA qualifying with deciding when to place the employee on an FMLA leave. Designating only means determining wheter or not the reason they are in need of leave is covered under FMLA. Aside from that, the decision is completely up to the employee. In this case the employer was a little insensitive, but was legally sound to terminate.
July 22nd, 2009 at 1:51 pm
The granting of FMLA leave is only “conditional” upon satisfactory completion and submission of the Certification Form that is to be completed by the medical provider. If the form is not submitted within 15 days from the time the employee receives it, then an employer may deny FMLA coverage. Without the Certification Form, there is no FMLA leave. How else would you know if it was an actual qualifying/eligible illness? If however, an employee has 15 days to provide a certification and does not provide the certification for 45 days without sufficient reason for the delay, the employer can deny FMLA protections for the 30-day period following the expiration of the 15-day time period, if the employee takes leave during such period. This is found in § 825.313 (a) and (b). Therefore, it really is up to the EMPLOYEE. It is up to the EMPLOYER to notify the employee of their rights, but it is up to the EMPLOYEE to follow through.
July 22nd, 2009 at 2:02 pm
Pat Says:
July 22nd, 2009 at 12:32 pm
Susanna, what planet are you from?? Your response is very confusing and provides the wrong information. It IS the employee’s decision whether or not to use FMLA in this case and HE further stated HE DID NOT WANT to apply it. Additionally, nowhere in this article did it state that it’s the employer’s policy to designate FMLA for employees missing a week or more of work. As far as I know, it is NEVER the employer’s policy to designate FMLA for their employees. Looks like you need to attend a some training seminar on FMLA and get your facts right.
Pat,
Since you were so nice about your comment to me, let me return the favor. Ummm, you stand corrected and I forgive you…by the way, I’m in California.
This article is from HR Specialist Employment Law bulletin – March 2007-Special Edition by Jonathan Landesman, Esq., and the question was:
Q: We have an employee who is going to be out eight weeks for a qualifying serious health condition. The employee isn’t requesting FMLA leave because she has enough paid sick leave. Can an employee choose NOT to use FMLA leave even though they meet the qualifications? And if they qualify for FMLA leave, can we make them use it whether they want to or not? C.T., Georgia
A: It is the employer’s obligation to designate leave as FMLA-qualifying whenever it becomes aware of an FMLA-qualifying event. It is not up to your employees to pick and choose when they want to use FMLA time, even if they have sick time or other forms of paid leave in the bank. You should immediately designate this employee’s eight weeks as FMLA time, to run concurrently with her paid sick leave. That way, she’ll only have four weeks of unpaid FMLA time remaining for the year after she uses up her paid leave. You should also check your FMLA policy to make sure that it requires employees to use FMLA time concurrently with their sick time.
Looks like YOU should attend more training seminars on FMLA and get YOUR facts right. You might also want to read the Employer’s Protected Leaves of Absence chart that your labor attorney’s could put together for your quick reference which states:
Payment During Leave: Under FMLA there is no obligation to pay employee unless employer’s own leave of absence policy provides otherwise. And,
Employee Request for Leave/Employer Response: Employee may request leave without using the term “FMLA.” Employer may require 30 days written notice before requested leave is to begin – if: (1) need for leave is foreseeable; and (2) employee had notice of this requirement. Employer must respond to request for leave within 5 business days. Employer may respond orally but must also subsequently notify employee in writing that the leave is designated as FMLA leave.
July 22nd, 2009 at 2:30 pm
Susanna, The FMLA laws have changed since 2007, actually the new laws became effective January 2009. Regardless, to keep the Employer looking good in the court’s eyes the Employer should use the law that benefits the Employee whether it be State or Federal. I have found that the Company’s policy doesn’t always matter if it isn’t in line with the law. The law wins….
July 22nd, 2009 at 2:49 pm
Lisa:
I realize FMLA was altered in January 2009, but not when it comes to that point. And yes, the courts do look to what benefits the employee’s most, but it also holds the employee accountable to deadlines and the employer’s policies.
The point being argued is not for “a couple of days” of requested leave to be designated as FMLA. My company doesn’t require an employee to use FMLA for anything less than a week, but we do require them to put in writing for a leave of absence for anything longer than three days and if the leave is for illness or kin care, their sick pay will be paid out whether they want to use it or not. If an employee is going to be out longer than a week, then we do designate their leave as FMLA whether they want to use it or not and their sick and vacation benefits are paid to them while they are on leave, again whether they want them to be or not. Unless they are out on PDL because you can not require PDL employees to use their accrued vacation benefits.
We do this to protect the company and everyone is treated just the same. I was out for what was supposed to be a 3 day surgery; it turned into a 3 week hospital stay. I requested five days of sick leave before I went into the hospital and ended up having all of my available and accrued sick and vacation benefits paid to me while I was ill. Although I didn’t request that, I’m very glad my employer saw fit to do this for me as it was much needed and very much appreciated. If I had to request that, I would have been out of luck.
July 22nd, 2009 at 3:01 pm
Susanna,
It sounds as if your company is very generous. Do you require Certification from the medical provider at all?
We do “conditionally” designate it as FMLA leave, but if we do not get the required Certification, then it is no longer FMLA qualified. We have received medical certification from employees and found that the doctor didn’t even think the employee needed to be off work and then found the employee was vacationing in the Bahamas. Also had certifications come in that said the employee had the flu and only needed to be off 3 days…”flu” is not a qualifying illness under FMLA unless there are complications. The employee was just trying to get around the sick leave abuse policy.
Sounds like you have employees who show up everyday, do their jobs, and only use sick leave and/or FMLA when they really need it – - that’s great! Unfortunately, that doesn’t always happen for us…we have those few who try to work the system.
July 22nd, 2009 at 4:07 pm
Lisa,
My company is generous and the employees do try to do what is right and that is what allows us to be such a good company, but don’t get me wrong, we have had quite a few employees who try to “buck” the system and they are quickly terminated.
I can’t say we’ve had to “conditonally” designate FMLA leave in a long time because we require notification from the employee immediately. (Our FMLA/CFRA/ADA/PDL, etc. policies are all in our employee handbook and rather than trust that the employee will read it at their leisure, it is gone over with them in orientation in detail so they know exactly what is expected) Just as the employer has 5 days to designate FMLA so does the employee to notify us of an FMLA-qualifying condition. If that’s not met, and they just don’t show up or call, they are terminated for not following procedure by calling in everyday they are absent. However, if they’ve supplied us with anything proving they are in need such as a physicians note or at least a request by the employee in writing of such need we do grant them FMLA leave and they must return the Doctor’s Certification Form and leave request paperwork within 15 days. I have not yet had a Doctor’s Certification Form returned to me that didn’t qualify for FMLA/CFRA.
We once had an employee who was in a car accident and broke his leg. He applied for FMLA/CFRA and was granted 12 weeks of leave. He was out his 12 weeks and then brought in another doctor’s note stating he would need an additional 6 weeks off because the break wasn’t healing properly. After researching and speaking to the labor attorney, it was determined that a broken leg wasn’t an ADA protected illness and he was separated because he was in a position that needed to be filled immediately and it would have caused an undue hardship to the company to continue to hold his position for him and there was no way he was able to return with an accomodation. He has since recovered and has returned to the company in the same position because another employee left.
We do have employees who really want to do the right thing and sometimes it doesn’t work out in their favor, but they are always welcome to reapply when they are better and so far we haven’t had any problems. We document EVERYTHING and keep meticulous records so even if we were taken to court, there’s no way we’d lose.
July 30th, 2009 at 11:17 am
Let me clarify a few facts:
1) Righi e-mailed after getting home the next morning ” Sorry, I did not get back to you you till now I was at the hospital emergency room. I have informed them in Indy of the situation. I talked to Kenta Joki and he told me not to worry about the training class and would reschedule. With out my care in the evenings my mother took an incorrect dosage of insulin and went into a coma.. I am her primary care provider. Of course, my primary goal is the well being of my family as I am sure it is yours as well. This is why I returned from Indy. I need the next couple of days off to make arrangements in an intermediate care facility for my Mother. This should solve alot of the problems I have been having. I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time I hope you understand my situation and approve this emergency time off. My job is very important to me and I know this has caused problems in the past, I am trying to resolve this so my job performance can improve, including call reports.
As you can see Righi was asking for approval for vacation to be paid and was never told it was not. That’s why he put it as a question, and leaving the FMLA open with the statement “not at this time.” If vacation was not approved of course he would have revisited the decision and asked for FMLA.
2) As to not returning the 14 calls. All were made to his company phone which he never used on vacation. His boss knew and used his home phone on a regular basis but did not for 9 days and then
was notified he needed a couple more days and was told he needed to wrap things up. Two days later his boss called the second time his home phone early morning and Righi returned the call in five minutes and said he had wrapped things up and would be at work the next day. He worked 4 hours then HR called and told his boss to fire him.
I know you only get bits and pieces but this is part of which is in question which is in appeal know.
After reading the e-mail in context does anyone still think Righi expressly refused FMLA?
August 18th, 2009 at 9:33 am
Chuck,
Yes, after reading the e-mail, in context, does nothing for the case.
The EE unequivocally stated that she did not want to use FMLA, “…or I could apply for the family care act, which I do not want to do at this time…”
This shows that the EE was cognoscente of her rights and responsibilities.
Vacation is not job-protected. ER’s have been known to arbitrarily term the EE’s that have done nothing more than take the most Vacation and Sick time.
The EE was rightfully term’d, and should have respected the law.