It’s time to double-check that your FMLA policy and notices aren’t missing this critical, but apparently easy to overlook, piece of info.
What is it? The 12-month period your company uses to calculate an employee’s remaining FMLA eligibility.
In other words, are you clearly articulating the date ranges you’ll use to add up how much of employees’ 60-day allotment they’ve used?
The Illinois Department of Corrections (IDC) didn’t, and the legal pickle it’s in can teach a lot of employers what happens when this piece of vital info is missing from your written FMLA policy and/or other documentation.
The IDC was sued by Michael Caggiano, a former corrections residence counselor at IDC’s Westside Adult Transition Center, after IDC terminated Caggiano for accumulating too many unexcused absences.
Caggiano had taken off to care for his ill mother and had requested that his absences count as FMLA leave.
He’d taken plenty of FMLA leave in the past for the same reason. Only this time, IDC claimed he’d exceeded his 60-day FMLA allotment, so his absences would need to go down as unexcused. That resulted in him accumulating more unexcused absences than IDC’s attendance policy allowed. So Caggiano was terminated.
Never told how it was calculated
Caggiano cried foul and filed an FMLA interference lawsuit against IDC. Among a few different arguments Caggiano states for why his FMLA leave was interfered where assertions that:
- he was never formally told how his FMLA leave was being calculated or from what date the calculation started, and
- he still had more than enough FMLA eligibility remaining to cover his unexcused absences.
IDC filed a motion for summary judgment with the court in an attempt to get Caggiano’s FMLA interference lawsuit thrown out.
It claimed Caggiano received all of the FMLA leave he was entitled to, and therefore he was no longer protected by the law. So he couldn’t sue for interference, IDC claimed.
IDC’s motion was denied.
The court said during the summary judgment phase of a case, “The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion.”
The party opposing the summary judgment motion was Caggiano, so the court had to view all the evidence in front of it in the light most favorable to him.
What was most favorable to him?
The big problem with IDC’s argument: It produced no evidence that had clearly articulated to Caggiano when its 12-month period for calculating FMLA leave began.
As attorney Jeff Nowak points out over at his FMLA Insights blog, the result of this was that the court calculated Caggiano’s leave in the way most beneficial to Caggiano. (Nowak also expounds on the benefits of always using the “rolling method.”)
And under the court’s calculation, Caggiano would’ve still had two weeks of FMLA eligibility to cover his unexcused absences.
As a result, the court determined, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party [Caggiano].” So it’s sending the case to trial, where IDC will have to convince a jury it provided Caggiano with a clear explanation of how it calculated his FMLA leave.
Analysis: Clearly define your 12-month period
This lawsuit demonstrates how important it is to clearly define how you calculate leave — in both your general FMLA policy and your notices to employees.
In addition, it’s a good idea to provide written updates on how much FMLA leave employees have remaining. This is the only way to remove suspicions that an employee didn’t know what the official count was.
Cite: Caggiano v. Illinois Department of Corrections