Why Communications Are Critical During an FMLA Leave

By Eric B. Meyer

How many times has an employee provided you with an incomplete Family and Medical Leave Act certification? Oh, I don’t know, maybe a missing return date…

If the FMLA leave is foreseeable, then the employee must provide the employer with the anticipated timing and duration of the leave. However, where the FMLA leave is unforeseeable — think, car crash — then that information can wait if the employee herself doesn’t know her return date.

But that doesn’t mean you — yeah, you employer — should let it go.

Fired due to lack of a return date

Do I have a case in point? You bet I do.

Suzan Gienapp, a residential nursing care facility employee, told her manager that she needed time off to care for her daughter, who was undergoing treatment for thyroid cancer. Apparently, this leave was unforeseeable.

While on leave, Ms. Gienapp mailed in a FMLA form, leaving blank a question about the expected duration for her covered leave. Although the parties debated whether the employer made a verbal request for a return date, there was no dispute that Ms. Gienapp complied with the company’s monthly call-in requirements to provide updates. The parties also agree that the company never made a written request for a return date.

Ultimately, based on a statement on the FMLA paperwork that the daughter may require assistance through July 2011, the company concluded that Ms. Gienapp would not be able to return to work within the 12-week leave period. Thus, it replaced her. And when Ms. Gienapp later reported for work on March 29, before her leave would otherwise have expired, but after she had been replaced, the company told her that she no longer had a job.

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Awkward!

Drawing an “unwarranted inference”

FMLA violation? Assuming the truth of Ms. Gineapp’s story, yep.

And here’s why, according to the Chicago-based Seventh U.S. Circuit Court of Appeals (in Gienapp v. Harbor Crest)

Harbor Crest told Gienapp to call in monthly, and it is conceded that she did so….We assume therefore that Gienapp complied with Harbor Crest’s policies….What seems to have happened instead is that Chattic drew an unwarranted inference from the physician’s statement in the original form and confused the anticipated duration of the daughter’s need for care with the anticipated duration of Gienapp’s absence from work, even though these are logically distinct.”

Employer takeaways

  • Communicate — Don’t just call, but write/email employees on unforeseen FMLA leave to ascertain the timing of FMLA leave and memorialize those efforts.
  • Document — Record your efforts to communicate with employees regarding FMLA leave and return to work.
  • Enforce — Require employees to follow your call-in rules for unforeseeable leave and, thereafter, provide periodic updates on return to work.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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