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.

Scorned employees will cry “FMLA protection” for just about anything these days. The question is, when can the argument stick? 

The answer, unfortunately, is all too familiar: It depends.

All employers can do is look at what the courts are currently saying, and use their guidance to direct FMLA policies and procedures.

In the most recent case to cross our desks, an employer’s smartly crafted policies won the day.

Migraines caused her to miss work

The case involved Jodi Lasher, a registered nurse for Medina Hospital in Ohio.

Lasher suffered from severe, sometimes debilitating, migraine headaches. These migraines had caused her to miss work on several occasions, for which she was issued a written warning. The hospital’s management had even received complaints from employees that Lasher had “disappeared” from her unit to deal with her headaches.

Medina hospital did the right thing. It approached Lasher about exploring possible accommodations for her condition. Then, after determining that accommodations weren’t applicable to her situation, the hospital’s management team recommended that Lasher use intermittent FMLA leave to deal with her condition.

At this point, the hospital laid out a procedure that Lasher was to follow when migraine symptoms flared up — symptoms severe enough to prevent her from doing her job, that is. The procedure required Lasher to let the nurse operations manager on duty, or at the very least one of her colleagues, know when she needed to remove herself from her duties.

Lasher acknowledged that she understood this procedure, and she agreed to follow it in the future.

The hospital approved all of Lasher’s FMLA leave requests, including an occasion when she developed migraine symptoms during her shift.

‘Major infraction’

Fast forward months later, and Lasher had a migraine flare up while on duty. She then left a pregnant patient unattended without informing anyone.

She was then found sleeping in an adjacent vacant room.

The hospital labeled it a “major infraction” of its procedures. It said it created an employee, as well as a patient, safety issue. So it fired Lasher.

She then filed an FMLA interference lawsuit. In essence, she claimed her nap was FMLA-protected.

The hospital filed for summary judgment in an attempt to get Lasher’s lawsuit thrown out.

The court granted summary judgement in favor of the hospital, and tossed the suit.

It ruled that for Lasher’s FMLA interference claims to survive summary judgment, she had to show:

1. she was an FMLA-eligible employee
2. the hospital was an employer as defined under the FMLA
3. she was entitled to leave under the FMLA
4. she gave the employer notice of her intention to take leave, and
5. the employer denied her FMLA benefits to which she was entitled.

Where Lasher’s claim fell apart was in satisfying the fourth element of that test. The court ruled Lasher failed to provide notice of her intention to take FMLA leave, despite an established procedure for providing notice that Lasher had agreed to follow.

The court then added:

“An employee seeking FMLA leave need not mention the statute expressly, but she must convey enough information to apprise her employer that she is requesting leave for a serious health condition that renders her unable to perform her job.”

Even using this somewhat lenient standard, Lasher’s actions fell short.

Case closed. Lawsuit tossed.

But before putting a bow on the case, the court pointed out some of the other facts the hospital had on its side. For starters, it had a track record of approving Lasher’s prior leave requests without fail. Plus, the hospital itself was the one to suggest Lasher apply for FMLA leave in the first place.

Both of those elements gave Lasher a pretty steep hill to climb to prove that the hospital intended to interfere with her FMLA rights.

Cite: Lasher v. Medina Hospital

It’s a given: Intermittent FMLA leave is a giant thorn in the side of HR people everywhere. But not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them.

The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members.

The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call.

It’s not always simple, however.

If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility’s not automatic

Companies can successfully dispute bogus employee claims to FMLA eligibility.

Consider this real-life example:

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time.

After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired.

She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her latenesses, she claimed, so each instance should have counted as a block of FMLA leave.

Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition.

The only time it affected her was when it was time to go to work.

Sorry, the court said. Intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.

 That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

Designating leave retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively.

Example: An employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia.

Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.”

The key here is that the company acted quickly – within two days of being notified of the qualifying leave.

The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation.

It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using employees’ PTO

First, a no-no: Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO).

Instead, you can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

The transfer option

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation.

The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same.

And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

A few restrictions: The move can’t be made if the transfer “adversely affects” the individual. Example: The new position would lengthen or increase the cost of the employee’s commute.

Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

Cooperation, please

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations.

Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

Sometimes, it’s as simple as taking an employee aside and saying, “I know you’ve got to go to physical therapy. But these 10 o’clock appointments are really affecting work flow. Could you see about scheduling them for after work hours?”

The firing question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights.

Obviously, workers can’t be fired for taking leave. But employers can lay off, discipline and terminate those employees who violate company policies or perform poorly.

When an employee on FMLA leave is terminated, the DOL decrees that the burden’s on the employer to prove the worker would have been disciplined or terminated regardless of the leave request or usage.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave.

So companies should be prepared not only to prove the business necessity of the move, but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave.

But companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence.

And courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave?

That answer’s not always difficult. Many times, employers don’t realize how badly an employee was doing until they see the mess he or she has left behind.

The good news: A number of courts have upheld employers’ rights to fire employees on FMLA leave – even when the employee’s problems were first discovered when the employee went off the job.