Monday, March 05, 2012

Confusion regarding date of return from FMLA leave decided against the employer

Confusion regarding date of return from FMLA leave decided against the employer
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Carl Thom worked as a molder for American Standard for 36 years before his discharge on June 17m 2005.  Prior to his discharge, Thom requested and was approved FMLA leave for the period April 27, 2005 through June 27, 2005 for shoulder surgery.  Because his shoulder healed more quickly than anticipated, Thom submitted medical documentation indicating that he could return to work on "light duty" on May 31, and set June 13 as the date Thom could return to full duty.  American Standard denied Thom's request to return to work earlier than approved, albeit on light duty as against company policy.  Thom did not return to work on June 13.

When contacted the next day, Thom explained that he did not return to work because he was experiencing increased shoulder pain, but would return on June 27, the end date of his approved leave.  American Standard discharged Thom for unexcused absences from June 13-17.

Thom sued alleging that his discharge violated the FMLA.  The district court awarded partial summary judgment in favor of Thom on his FMLA interference claim.  Thom argued that American Standard failed to adequately notify him of its method for calculating FMLA leave because it did not notify him in writing or otherwise that company policy was to use a "rolling" method of leave rather than the calendar method. 

Under the rolling period method, the 12 weeks of leave is calculated "backward from the date an employee uses any FMLA leave.  Under this method, Thom's FMLA leave would have expired on June 13.  Under the calendar year method, Thom's leave would have extended through July 14.  The only written document Thom received from the company stated that his leave would expire on June 27.  American Standard firs notified Thom that it had accelerated his return-to-work date on June 14, a day after it had elapsed.  American Standard first notified Thom that it used the "rolling period" method for calculating the 12-month FMLA leave year after Thom filed his lawsuit.

American Standard argued that it had always used the "rolling period" method of calculating FMLA leave, and that Thom should have known this fact.  It further argued that Thom was on constructive notice through its union that the company used the rolling" method.   

The Sixth Circuit held that, even if notice to the union of the employer's method for calculating the FMLA leave-year can be imputed to an employee, that is not the case where, as here, American Standard officially approved Thom's leave through June 27- 10 work days in excess of what would have been permitted by the "rolling" method.  In short, the Court opined that "actual notice of a particular return-to-work date trumps constructive notice of another." The Sixth Circuit affirmed the decision of the district court that American Standard interfered with Thom's FMLA rights.  The Court also affirmed the award of $104,354.85 in back pay, and an equal amount in attorney fees and costs.

Mr. Bosland comments: Employer's can choose one of four methods for determining the 12-month period in which the 12 or 26 weeks of must be taken: (1) calendar; (2) other fixed leave year; (3) rolling back method; and (4) measured forward method.  See 29 CFR 825.200.  Employers are also required to notify the employee of the applicable method for calculating the 12-month leave year as part of the rights and responsibilities notice.  29 CFR 825.300(c)(1).  The case reminds employers that they need to clearly notify their employees of the FMLA leave year method they have selected.  

 The case is interesting as it leaves open the possibility of imputing notice to the union of the leave year method selected to the employee. Arguably, the DOL's requirement that employer's include notice of the method of leave year calculation in the rights and responsibilities notice should foreclose the viability of such constructive notice.  Employer's would be well advised to publish clear notice of the FMLA leave year method they have selected to all employees and avoid the much riskier constructive notice argument altogether.   
  
The decision, Thom v. American Standard, Case No. 09-3507/3508  (6th cir. January 20, 2012), is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/12a0016p-06.pdf

The Sixth Circuit covers Kentucky, Tennessee, Ohio, and Michigan.

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