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.
[Nope, not cueing any music here, m-kay…]
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 an 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.
FMLA violation? Assuming the truth of Ms. Gineapp’s story, yep.
And here’s why, according to the Seventh Circuit Court of Appeals (opinion here)
“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.”
- 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.