Poorly implemented FMLA policies and procedures are in the spotlight this week.  And just a few vague words and a slip up are costing two employers hundreds of thousands of dollars.

Their mistakes, however, are golden lessons for the rest of us.

Confusion Over How Much Maternity Leave is Provided

In Sad Employer Story No. 1, Bhavani sought leave to give birth to her child and to bond with the child. No sweat, said the employer, who had surely gone through this exercise before.  The employer maintained both an FMLA policy and a standalone “maternity leave policy,” which read (in part) as follows:

Maternity leave will be treated in the same manner as any other disability leave. Please see the Human Resources Manager for a complete description of Maternity Leave.

At present, all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.

Notably, these two policies were completely silent on whether FMLA leave and maternity leave ran concurrently or consecutively.

To make matters worse, the employer failed to provide Bhavani the critical FMLA Notice of Eligibility or Designation Notice, so she didn’t have a clue what was coming or going when it came to FMLA leave.

When Bhavani later was terminated when she did not return to work on time, she cried foul, claiming that the employer’s policies and lack of notice led her to believe she was entitled to additional leave. The court agreed that the employer’s FMLA and maternity leave policies, when read together, could lead an employee to believe that FMLA and maternity leave are taken consecutively. Therefore, the court determined that a jury must decide whether Bhavani’s employer violated the FMLA when it declined to give her additional leave.  Rengan v. FX Direct (pdf)

Confusion Over How Much Notice an Employee Should Provide When Requesting FMLA Leave

In Sad Employer Story No. 2, Lisa injured her shoulder while falling through the hatch of a catamaran boat.

Ouch. That couldn’t have felt very good.

As a result, Lisa requested and was granted FMLA leave beginning in early July. On her leave of absence form, Lisa indicated that her return date would be July 31. Her physician later cleared her to return not on July 31, but on August 4.

In Lisa’s employee handbook, it stated:

If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned.

But then it also mentioned this:

If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the County with reasonable advance notice (i.e., within 4 business days) of the employee’s changed circumstances and new return to work date.  (My emphasis, not the court’s.)

A bit confusing. In Lisa’s situation, the employer considered July 31 to be her last day of FMLA leave (since that’s the date she originally indicated). Therefore, when Lisa was a no-show on August 1, it considered her to have voluntarily resigned her employment. After all, that’s what the policy says, right?

Not so fast. The policy also states that Lisa has four business days to inform the employer of the need for FMLA leave. That’s practically a lifetime. So, when the employer terminated her employment without giving her up to four business days to comply, the court found that the employer potentially violated the FMLA. Perry v. Isle of Wight County  (pdf) My friend, Eric Meyer, has a good synopsis of the case here.

Insights for Employers

A few nuggets we need to keep in mind when drafting FMLA policies and call-in procedures:

  1. Let there be no ambiguity as to whether maternity, parental, caregiver, disability or any other kind of paid leave runs concurrently with FMLA leave. The FMLA regulations allow employers to run paid leave concurrently with FMLA, so do it.  And make it crystal clear in your policy.
  2. When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), it is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, it must provide the individual notices to the employee.
  3. Draft and maintain very clear call-in procedures, and ensure they are demanding. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” What kind of useless parameters are these? Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.”  If you are inclined to be a bit more generous, consider cutting it back from the four business days allowed by Lisa’s employer. These lengthy reporting grace periods frustrate your ability to properly staff your operations, lead to misuse of FMLA and, as here, they create easy opportunities for you to violate them, resulting in expensive attorney’s fees and potential liability.

ConfusedHere’s a shout out to all you employers out there who forget to send your employees the proper FMLA notices when they seek leave for a reason covered by the FMLA. Occasionally, the courts have your back, despite your lack of attention to detail.

As I have discussed before, when an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and Rights & Responsibilities Notice (which usually is accompanied by a blank medical certification form).  Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice.  If you don’t send these notices to your employees, you risk an FMLA violation.  Ask Wackenhut, which was held liable in an an FMLA interference lawsuit simply because it failed to provide these standard FMLA notices.

But then comes Scott Bellone v.  Southwick-Tolland Regional School District (pdf).  In Scott’s situation, he didn’t receive a proper Notice of Eligibility.  In fact, when he sought a leave of absence, the “Notice” he received with his blank medical certification form could not remotely be considered a Notice of Eligibility, since the document essentially said nothing more than, “Hey, Scott, fill this [medical certification] form out and get it back to us in 15 days.”  [Well, it didn’t really say that, but I’m not far off. Here’s an original copy of it.]

When Scott returned the medical certification completed by his health care provider, the employer did not send him a designation notice right away.  In fact, it waited until his 12 weeks of FMLA leave were exhausted, and then waited another four weeks.  At that point, it sent him the Designation notice, which retroactively designated the previously exhausted 12-week period as FMLA leave.

Scott was terminated a short time later for reasons not directly related to his leave of absence.  When he filed suit against his former employer, he claimed — among other things — that his employer violated the FMLA because it did not provide him proper or timely FMLA notices.  Had he known that the absence was being classified as FMLA leave, so he argued, he would have planned out his leave of absence in a manner which would have allowed him to use some leave time later.

Employee Must Show Failure to Provide FMLA Notices Harmed Him

Had Scott brought this case before Wackenhut court (see case reference and link above), his FMLA claim might have had some legs to run.  But the court reviewing Scott’s claim took a far more pragmatic approach (and one I wish the DOL would endorse).  On one hand, the employer technically violated the FMLA when it failed to provide Scott proper and timely FMLA notices.  On the other hand, however, Scott took about 16 weeks of leave, which outstripped the 12 weeks provided for under the FMLA.  Thus, the deciding factor for the court was that Scott failed to provide any evidence that he actually could return before his leave ended or that he would have structured his leave differently had he been provided appropriate notice.  The Court put it this way:

the School District came forward with affirmative evidence demonstrating that [Scott] was unable to return to work before the end of the academic year. At that point, it was up to [Scott] to establish a genuine issue for trial by presenting more than just a bare allegation that he could have done things differently if he had known that his leave would count toward his FMLA entitlement.

For the court, “nothing was lost, nor was any harm suffered, by reason of the [failure to provide proper and timely notices].”   In short, the court adopted the approach taken by the U.S. Supreme Court in Ragsdale v. Wolverine Trading (ultimately adopted in the changes to the 2009 FMLA regulations), which held that late or inadequate notices are not actionable unless they harm the employee.

Insights for Employers

The employer dodged a bullet here.  I share this case not to highlight employer best practices [clearly, the employer’s actions here are not a model for us to follow], but as a reminder that the way to go — indeed, the best practice — is to provide proper and timely FMLA notices.  When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and Notice of Rights and Responsibilities.  When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.

If there are no exceptions to this practice, we stay compliant.  And we avoid results like the one I highlighted in Wackenhut.  This makes your risk managers happy.  And you will pay your employment attorneys far less.  [We’ll get by…sob, sob…]

funny-looking-rooster-chicken.jpgWhat do you do when one of your employees has informed you of what clearly is an FMLA-triggering event (she needs to care for her dad who is seriously ill in the hospital), but then tells you she doesn’t want the absence designated as FMLA leave?  I’ll share my opinion below, but in the meantime, one of the most employee-friendly courts in America just told us this past week that you can grant the employee’s wish and not designate the absence as FMLA leave, even though it otherwise would be covered by the FMLA.  

Although we are barely three months into the new year, I predict this decision, Escriba v. Foster Poultry Farms (pdf), will be one of the Top 5 most influential FMLA cases of 2014.  So, for this reason alone, the analysis below might be worth the read. 

The Facts

Maria worked at a poultry processing plant owned by Foster Farms.  By any measure, Maria was a pro on the FMLA circuit: throughout her employment, she took FMLA leave on 15 different occasions.

In November 2007, Maria approached her direct supervisor, Linda, to request time off to care for her ill father in Guatemala. Maria, whose second language is English, explained to Linda that her “father is no good” and was in the hospital.  So, she stated, “Linda, for me, vacation.”  Linda responded, “Okay, Maria, you vacation.”  She told Maria she would approve two weeks of vacation.

Later that day, Maria approached Linda again, this time stating, “Please one week or two week free for me,” which she later explained meant she was asking for unpaid leave in addition to vacation.  Linda rejected her request.

Still apparently confused, Linda returned with another supervisor who acted as an interpreter and, through a series of questions, confirmed that Maria did not want to take any more than the two weeks of vacation she had just been granted.

Afterward, Maria reached out to Ed, the facility superintendent, and explained (in Spanish, which he understood), “I’m on my way to Guatemala . . . because my dad is very ill.  I am only going with two weeks vacation [but] wanted to know if you could do me a favor and give me one or two weeks more leave.”  Ed told her he could not provide any additional leave.  

Thereafter, Maria left for Guatemala.  She remained there well past her return date, and she didn’t contact Foster Farms until 16 days after she was scheduled to return to work.  As a result, Maria was terminated for violating the Company’s three day no-call, no-show rule.

Court Decision

After her termination, Maria filed an FMLA interference claim.  Her argument was straightforward: the reason for her leave—caring for her ill father—triggered FMLA protection, and she notified her employer of the need for leave for this purpose, so her employer was obligated to designate her absence as FMLA leave. Because of the “he said, she said” nature of the allegations, the case proceeded to a jury trial, where the employer prevailed.  Maria appealed the jury’s verdict.  

At issue in the appeal was whether an employee can affirmatively decline using FMLA leave, even though the underlying reason for leave would have been FMLA protected leave.  To this question, the court answered, “yes.” 

In reaching its decision, the court focused on the FMLA regulations’ expectation that the employer engage in an informal process to obtain additional information about whether the employee is seeking FMLA leave.  Therefore, according to the court, the regulations suggest that “there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA” in order to preserve her FMLA leave for a later time. 

Interestingly, on no fewer than 15 previous occasions, Maria requested FMLA leave directly from Human Resources, as required by Company policy.  According to the court, her failure to do so on this particular occasion only further indicated that she did not wish to utilize FMLA leave to protect her absence. 

Judgment for employer affirmed.  

What is Wrong with the Court’s Decision?

Ugh.  I don’t like this decision, largely because its holding undoubtedly will leave employers unsettled as they determine whether to designate FMLA leave in the future. Don’t get me wrong — I root for employers, so I’m doing the happy dance for Foster Farms because they prevailed. But what’s good for Foster Farms on this occasion is a mess for the rest of us.  

Simply put, the court’s reasoning is contrary to the common understanding that employers designate an absence as FMLA leave whenever it is taken for an FMLA-qualifying reason, regardless of what the employee might want.  There are good reasons for designating these absences as FMLA leave:

  1. It actually avoids administrative nightmares for employers. To try and divine the intent of someone like Maria will lead to chaos. Contrary to what the Escriba court might suggest, it is far easier from an administrative standpoint to designate FMLA leave when the leave qualifies as such. Employees’ preferences should not control the issue.   
  2. Designating an absence as FMLA leave where it qualifies as such protects the employee’s job.  If the leave is not designated as FMLA leave, the employee’s absences are subjected to the employer’s attendance policy, which undoubtedly will lead to more employee terminations. Perhaps an unintended consequence of the Escriba decision?  
  3. If an employee has the flexibility to choose when and where FMLA applies, employers effectively provide employees more leave than they are legally entitled. Take Maria’s situation, for instance. Under Foster Farms’ FMLA policy, her paid leave and unpaid FMLA leave should have run concurrently.  Thus, the maximum amount of leave available to her (between her paid and unpaid time) would have been 12 weeks. However, if you allow her to control whether FMLA applies, she can exhaust all of her paid leave first (which we know was at least two weeks) and then use another 12 weeks of FMLA leave at a later date.   
  4. Building on this last point, as a practical matter, employers want FMLA leave to exhaust sooner, rather than later. So, for the far majority of employers, the Escriba holding will not be well received, since it endorses an employee’s ability to stack paid leave and unpaid FMLA leave consecutively rather than concurrently.  

There were plenty of thoughtful reasons the court could have employed to affirm the jury’s defense verdict here, but it chose not to.  For instance, the court could have decided that Maria did not provide adequate notice of the need for FMLA leave because she did not follow the employer’s usual and customary policy for reporting leave to Human Resources.  It also could have taken the approach that Maria simply was not entitled to reinstatement to her job because she went AWOL — indeed, the record indicates that she blew past her return date by 16 days before contacting Foster Farms.   

Insights for Employers

Of course, you’re wondering: This is all fine and good, but Jeff, would you just tell me how I handle leave requests in the future where the employee informs me that he doesn’t want FMLA leave to apply?

To be candid, my recommendation is to ignore the Escriba decision and designate the absence as FMLA leave if it indeed qualifies as such.  For me, the FMLA regulations are clear.  At 29 C.F.R. 825.301(a), the DOL tells us, “Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.  

For ages, I’ve counseled my clients in these situations to designate the absence as FMLA leave and remind the employee of two things: 1) the employer has no choice in the matter — once the absence qualifies under the FMLA, the regulations require the employer to designate the time as FMLA leave (under Section 825.301(a)); and 2) it actually works to the employee’s benefit to designate the time as FMLA leave, since it ensures that their job is protected during leave.  I explained this in a blog post last year, if you want further guidance on this situation.

Despite the Escriba decision, and with all respect to the Ninth Circuit Court of Appeals, I’m not changing my tune now.  And neither should you.

sick_leave_protest.jpgQ:  One of our employees will be absent for a serious health condition.  However, the employee prefers to use his accrued sick days instead of FMLA leave.  He has enough sick time to cover the absence.  In this situation, can the employee choose not to take FMLA leave, either because he has not specifically asked for FMLA leave or because he simply does not want to use FMLA leave?

A:  This is one of the most common questions I am asked in my practice, and it is due largely to the grand confusion caused by the Family and Medical Leave Act.  There actually are several sub-questions contained in the nugget above, and I answer them below.

1.  Does an employee specifically have to use the letters F-M-L-A when requesting leave protected under the Act?  Heck no!  Why?  The U.S. Department of Labor says so.  In its FAQs (pdf) on the FMLA, the DOL specifically states that when “an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA.”  Rather, the employee need only provide “sufficient information” to make the employer aware of the possible need for FMLA leave.  Note: After the employer has provided FMLA leave for this reason, however, the DOL tells us that “the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.”

Thus, it becomes critical that HR professionals and supervisors fielding the call-offs from employees be trained and in a position to identify situations where the employee has put you on notice of the need for FMLA leave.

2.  If the employee qualifies for FMLA leave, can an employer make the employee use FMLA leave, even if the employee does not want to use it?  Do not let your employees sweet-talk, bamboozle or bully you into not counting an absence as FMLA leave where the leave of absence is taken for an FMLA-qualifying reason.  Take it from the regulations themselves: 

The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee . . . When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.  29 CFR § 825.300(d)

The employer’s obligations under the FMLA are clear: once it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave.  In other words, the employer has an obligation to designate leave as FMLA-qualifying as soon as the absence becomes an FMLA-qualifying event.  Employees do not have the right to choose when they take FMLA leave.  As soon as the leave of absence qualifies as FMLA leave, it should be designated as such — regardless of whether the employee wants FMLA to apply. 

Failing to designate an absence as FMLA leave can have quite a negative impact on an employer’s operations.  For example, if you fail to designate an employee’s 10-week absence as FMLA leave (when it rightfully qualifies as such), but instead allow them to utilize accrued sick leave from their sick bank, you effectively have allowed the employee leave that they otherwise are not entitled to by law.  Although they will have exhausted 10 weeks of sick leave, they still have up to 12 weeks of FMLA leave available to them (instead of two weeks) because you did not designate the 10-week absence as FMLA leave.

3.  Can an employer require paid leave to run at the same time as FMLA leave?  Here, the employer’s policy governs.  If the policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave to run at the same time.  29 CFR § 825.207(a).  In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave. 

In this situation, you run into the same troubled situation identified in Section 2 above — the employee can stack paid leave and FMLA leave on top of each other, resulting in more leave than the employee legally is entitled to.  If your policy currently does not require paid leave to run concurrently with FMLA leave, discuss this with employment counsel to ensure your policy is consistent with your business objectives.  The money you save in the long run will be well worth the advice.

“Notice of Eligibility?  Designation Notice?  Medical certification form?  I give up!”

We often hear from clients that they have a tough time properly responding to an employee’s request for leave that might be covered by the FMLA.  Clearly, under the new FMLA regulations, employers must be able to master this response.

After listening to this month’s FMLA Insights podcast, employers will have a clear understanding of what their responsibilities are when responding to a request for leave.

During the podcast, we will reference the DOL’s model Notice of Eligibility and Rights and Responsibilities (WH-381) and Designation Notice (WH-382).




At one time or another, even the most experienced HR professional has inadvertently failed to designate an absence as FMLA leave. When an employer fails to designate an absence as FMLA leave, how should it address the situation when it later uncovers the oversight?

Listen to Franczek Radelet’s podcast on designating FMLA leave after you missed the deadline:


If you experience a slow connection, please right-click this link and download the podcast.