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Appeals court says employers must communicate FMLA to workers

Employees in Maryland, D.C. and Virginia have rights to take leave under both state law and the federal Family and Medical Leave Act. The laws pertain to leaves associated with the employee's health or medical condition, or that of an employee's family members. Often, either the employer or the employee is not exactly sure how these rights work.

Employees have rights to take leave specifically when it is due to pregnancy, maternity, paternity, parenting time related to an adoption, cancer treatment, surgery, disability or to care for a child, among other things. A federal appeals court has recently ruled that an employer that failed to communicate its policies surrounding FMLA benefits cannot fire a worker for violating those policies.

The case involved a 36-year-old employee in Cincinnati who asked to take an FMLA leave in 2005 (from April 27 to June 27) for a non-work related injury. The Ohio-based firm approved the leave. However, the worker's doctor cleared him to return to work two weeks early, on June 13. The employer asked the worker on June 14 why he had not returned to work. The worker responded that his injury was still painful, and then he returned to work on June 17 with a note from the doctor which requested an extended leave until June 18.

The man was fired because the company counted the four days after the doctor cleared him as unexcused absences. But, the appeals court has now ruled in favor of the worker because the employer did not inform its employees of how it calculated FMLA leave.

There are two methods to calculate FMLA, rolling or calendar.

Using the rolling method, the leave is calculated backward from the date an employee begins to use it. Using this method, this employee's leave would have expired June 13. Under the calendar method, employees are eligible for 12 weeks of leave each calendar year--this method would have allotted him leave until July 14.

The only written notice the worker had from his company concerning his leave listed the expiration date of June 27. The company only told him that the return-to-work date had been changed the day after it was changed.

The appeals court said that employers need to inform their employees in writing of which method they use to calculate the FMLA leave year. The court also ordered the company to pay the employee liquidated damages, as provided for in the FMLA, which are double damages. This amounted to more than $312,000 in back pay and legal fees.

Source: Business Insurance, "Employer did not communicate FMLA police, can't fire worker: Appeals Court," Judy Greenwald, Jan. 24, 2012

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