Your FMLA policy tells employees they can take up to 12 weeks of unpaid FMLA leave each year. But does your policy define “year”? If not, a court may do it for you—in the employee’s favor, of course …

Case in Point: Gayle Spencer, director of student affairs at a Detroit college, was hospitalized for complications of diabetes and pneumonia. She began her FMLA leave on Dec. 16, 2004 and remained on leave until March 18, 2005, when the college fired her.

She had been on leave more than the allowable 12 weeks. The school explained the firing by saying her leave was up and it didn’t have to hold her position any longer.

Not so fast. Spencer sued under the FMLA, arguing that she was entitled to 12 weeks of FMLA leave in calendar year 2004 and another 12 weeks in calendar year 2005.

The college saw things differently. College officials said its FMLA “year” was based on a fiscal year starting July 1, the same fiscal year cited in other school policies. But Spencer shot back that the school’s FMLA policy never mentioned the July 1 date. Who was right? (Spencer v. Marygrove College, E.D. Mich, Aug. 26, 2008)

How did the case end … and what three lessons can be learned?

Migraine headaches can be serious business—sometimes requiring FMLA leave. But what if you discover that your migraine-suffering employee used her FMLA time to cut lawns at her side job? An Indiana employer facing that situation recently handled that situation aggressively—and legally …

Case In Point: Diana Vail worked the third shift (11 p.m. to 7 a.m.) at an auto parts manufacturing plant. Vail sometimes suffered from migraine headaches that, she said, “crept on her with short notice.” When they’d occur, she’d call a supervisor and say she was taking FMLA leave.

The company knew that Vail’s husband owned a lawn-mowing business and that she worked for him on a part-time basis. The company also noted that her FMLA requests increased during the summer hours when her husband’s services were in peak demand.

So, the company hired an off-duty police officer to follow her. It suspected she was abusing the intermittent leave and was, in fact, healthy enough to work for her husband.

During one of Vail’s migraine-induced FMLA leaves, the investigator observed Vail mowing the lawn of a husband’s customer. The company fired Vail because it had an “honest belief” that Vail was not using her leave for its intended purpose.

Vail sued, claiming her employer unlawfully interfered with her FMLA rights. For Vail to prevail on an FMLA-interference claim, she must prove that she used her FMLA leave “for the intended purpose of the leave” and that her employer took negative action against her because of the leave. (Vail v. Raybestos Products Co., 7th Cir., 7/21/08)

How did the case end and what lessons can be learned?

When was the last time you read your organization’s Family and Medical Leave (FMLA) policy? As a new case shows, it could be creating a contract for employees to gain FMLA-like protection even if they normally wouldn’t be eligible for FMLA under the law. If it does, get ready to stand by your promise …

Case in Point: Steven Peters worked out of his Indiana home for a pharmaceutical manufacturer headquartered in California. He sold company products to doctors in the Midwest. When Peters suffered neck and shoulder injuries in a work-related car accident, he filed a workers’ compensation claim. Later he returned to work with restrictions but then was required to undergo surgery.

Peters requested FMLA leave and his employer granted it. The FMLA covers organizations with at least 50 employees within 75 miles of the worksite. The law says that for employees to be eligible for FMLA, they must have worked at least 1,250 hours in the past 12 months for that employer. (Of course, employers can set their own, less-restrictive qualifications for FMLA leave.)

The employee handbook distributed by Peters’ employer stated that all employees were eligible for FMLA leave if they worked 1,250 hours in the previous 12 months. That was the only requirement. It didn’t mention of the FMLA statutory requirement that employers have at least 50 employees within 75 miles to be eligible.

The company sent Peters a letter confirming his FMLA leave and promising Peters he would retain his employee status during the FMLA leave.

Peters requested a second FMLA leave related to his injury, which was granted. But prior to his return, the company hired his replacement.

Peters sued under the FMLA. The company responded by claiming that Peters wasn’t covered by the FMLA because the 50/75 requirement wasn’t met. Peters argued that the company should have included that requirement in the handbook if it was company policy. (Peters v. Gilead Sciences, 7th Circuit, 7/14/08)

When the Society for Human Resource Management (SHRM) surveyed employers about their biggest FMLA administrative challenges, dealing with leave for employees’ own chronic conditions ranked number one. But, surprisingly, not far behind was FMLA leave taken for “caring for a sick parent,” which ranked as more challenging than FMLA leave taken for a sick spouse or even a child.

With more “sandwich generation” employees taking care of children and parents at the same time, it’s wise to be consistent about requesting certification for all types of FMLA leave, including care for elderly parents.

Case in Point: Honda employee Chandra Scott filed an FMLA lawsuit, claiming that she was fired in retaliation for taking FMLA leave to help her mother.

Scott had taken leave when her mother underwent a stress test after she complained of shortness of breath. Then, more than a month later, her mother had an outpatient heart catheterization but went back to work after 48 hours. She didn’t need any further time off.

Honda argued that Scott didn’t qualify for FMLA leave because, it said, her mother’s condition didn’t rise to the level of a “serious health condition” defined under the FMLA. Under the FMLA a “serious health condition” is an “illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.” (For details, read “FMLA: How to Define a Serious’ Health Condition.”)

How did the case end? And what lessons can be learned?

Have you ever approved FMLA leave for an employee but had a sneaking suspicion that the time off would be used for much more than bed rest? In this new ruling, the company actually videotaped a supposedly injured FMLA-leave taker building a porch on his house. But be careful not to pull out the “You’re Fired!” finger too quickly or you may find yourself in the center of an FMLA retaliation suit.

Case in Point: James Weimer worked on a Honda assembly line at an Ohio plant. One day, he suffered a concussion when a co-worker closed his head into the trunk of his car. The company doctor ordered him off work pending further exams by a specialist. Weimer ask for FMLA leave and received it.

Weimer was cleared to return to work on March 15 but actually came back the following day. Honda, acting on a tip, videotaped Weimer on March 15 building a front porch on his home. When he returned to work on March 16, the company questioned him about his lumberjack activates. Weimer didn’t deny it.

Honda fired him for dishonesty. It argued that Weimer had “abused” his FMLA leave, using it to build a porch, not to recover from injury. Honda asserted that it didn’t fire Weimer for exercising his FMLA rights, but rather for staying on it too long when he no longer needed it. (The FMLA says that employees can “lose the protections of the FMLA when he or she does not use the leave for its intended purpose.”)

In response, Weimer shot back with an FMLA retaliation lawsuit. He claimed that he didn’t believe he needed FMLA leave the entire time but had to wait for Honda’s doctors to clear him to come back to work. (Weimer v. Honda of Am. Mfg. Inc., 6/12/08)

What should employers do if an employee’s work performance suffers while he or she is taking FMLA intermittent leave? Can you terminate employees when their work falters because of those absences? One court last month sent a clear message: “Don’t go there!” It said employees exercising their FMLA rights should not be held to the same production standard as full-time employees who are at work everyday. Disciplining or firing such workers could earn you a one-way ticket to an FMLA retaliation lawsuit.

Case In Point: Debra Lewis, a bookkeeper for an Illinois school district, performed her duties very well and earned good reviews. But when both her parents became terminally ill, she requested and was given a flex-time schedule and was allowed to bring some work home.

The superintendent soon complained that Lewis was missing too much work and it was burdening her co-workers. The school board wanted her fired for poor performance, but the superintendent expressed fear of FMLA liability. So instead, he offered Lewis 12 weeks of unpaid intermittent FMLA leave. Lewis accepted.

Lewis was still expected to perform the duties of a full-time bookkeeper while on intermittent leave. The school board didn’t hire a part-timer or ask co-workers lend a hand. Lewis worked nights and weekends to catch up with her work, but it was all unpaid.

The school board, at tape recorded meetings, said it wanted to fire Lewis and called the FMLA “ludicrous” and a "fiasco.” The board told the superintendent to build a case against Lewis based on her poor performance so she could be terminated. Eventually, Lewis was given a choice: resign or take a demotion and salary cut based on her poor performance.

How did this case end … and what lessons can be learned?

“So exactly why do you need those four days of leave?” Your supervisors may ask such questions, perhaps out of curiosity or because they’re the ones who must approve FMLA requests. But as this ruling shows, asking the wrong questions—and then divulging that confidential medical info—can quickly turn into a violation of the Americans with Disabilities Act (ADA).

That’s because the ADA prohibits employers from “making inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” The ADA also says all medical information must be collected on separate forms, kept in separate files and treated as confidential.

Case in Point: “John Doe,” a credit-company employee, was diagnosed with HIV and needed to have his blood drawn regularly. Doe was written up by his supervisor for missing work to attend medical appointments.

Once when he needed four days of leave for doctor’s appointments, Doe didn’t want to approach his direct supervisor, fearing that he’d gossip about Doe’s HIV status. So Doe approached another supervisor, Danny Dunson, to approve a schedule-change accommodation.

Dunson demanded to know Doe’s specific diagnosis. He pressed him, stating, “I have to know why actually to accommodate you when other people are coming and asking for accommodations and I am turning them down. Why am I going to give you an accommodation?”

Doe replied that his condition was “confidential and stigmatizing.” But Dunson pressed on, demanding to know “what’s going on.” Doe eventually revealed his HIV diagnosis to Dunson. It didn’t take long for word to spread.

Dunson told Doe’s immediate supervisor, apparently because the direct supervisor wanted to know exactly why Doe was no longer on the regular schedule. As Doe feared, his direct supervisor soon disclosed his HIV diagnosis to a handful of his co-workers.

Doe complained. An HR investigation determined that the supervisor breached Doe’s right to confidentiality. Doe claimed he suffered shame, embarrassment and depression as a result of the workplace gossip.

Doe sued under the ADA, claiming the company made unlawful inquiries into his medical condition and wrongfully disclosed his confidential medical diagnosis. The company argued that it did nothing wrong, saying Doe volunteered the information and there was no “sustainable injury” caused to Doe when the information was divulged. (EEOC v. Ford Motor Credit Company, 1/14/08)

How did this case end ... and what three lessons can be learned?

Employees with “serious health conditions” can take FMLA leave. But when does that serious condition take effect for employees who need alcohol treatment? Is it when the employee first contacts a doctor to get a referral for in-patient treatment … or is it at the time of check-in? Can you fire an employee for absenteeism prior to going in to rehab? One court ruling last week says you can:

Case in Point: An Indiana food company had a point-based absence system that called for termination after workers accumulate 32 points. The company didn’t count absences related to FMLA leave.

Krzysztof Chalimoniuk, a baker at the company for 15 years, had wrested with alcoholism for some time. One Friday, he went on a major binge. He failed to appear at work for the next three days, which pushed him over the 32-points limit.

Over that binging weekend, Chalimoniuk’s wife realized he was relapsing and contacted a local hospital to ask if she could bring him in for treatment. After dealing with doctors and insurance issues for several days, he was admitted to the hospital, where he received inpatient treatment for a week.

Chalimoniuk returned to work with documentation from physicians that he was treated for alcoholism. He claimed his FMLA-covered absences began during that lost weekend (July 29) because he and his wife had contacted the doctors for treatment referrals over the weekend. The company’s HR person dug deeper and found that he wasn’t actually admitted to the hospital until Aug. 4, which was after his last-strike absences.

The HR person contacted the U.S. Labor Department for help. Their answer? Go read the FMLA regulations (section D) relating to substance abuse. Gee thanks!

After reading the regs, she decided that Chalimoniuk’s absences during the three days before his hospital admission were NOT protected by the FMLA because they weren’t for treatment. Therefore, he was charged for the three days of absences, which added up to termination. Chalimoniuk filed a lawsuit claiming his firing was an illegal denial of his FMLA benefits. (Darst v. Interstate Brands Corp., 7th Cir., No. 04-2460, 1/11/08).

But when employees are out for workers’ compensation injuries, must you interpret that as automatic notice that they’re suffering a “serious health condition” that qualifies them for FMLA leave? This new ruling shows how workers’ comp leave can quickly morph into FMLA notice:

Case in Point: While operating a snow plow, public works employee Gene Jedlowski hit a manhole cover, causing him to crack his head on the truck’s roof. He was diagnosed with four herniated discs in his neck and went on workers’ comp leave. His boss wasn’t happy, saying the leave “wasn’t right,” and even calling Jedlowski to ask him to report to work while on leave.

On the day Jedlowski started his leave, his boss discovered a racially hostile CD in Jedlowski’s township car and recommended he be terminated. Sure enough, he fired Jedlowski on the day he returned.

Jedlowski sued the township, claiming his firing was retaliation for taking workers’ comp leave and interference with his FMLA rights. The township argued that Jedlowski had no entitlement to FMLA benefits because he was receiving benefits under the state’s workers’ comp program, and that Jedlowski was fired in good faith for having inappropriate music at work. (Jedlowski v. Charter Township of Genesee, E.D. Michigan, 11/14/07)

Typically, employees must notify you if they have an FMLA-qualifying “serious” physical or mental condition. But what if the employee, herself, isn’t aware of this need? Is it up to you and your supervisors to recognize any behavior changes that may indicate the presence of a serious FMLA-qualifying condition? In cases of psychiatric problems it likely does, as the following case shows.

Case in Point: Beverly Stevenson, an electric-company receptionist, was a model employee for eight years. All that changed the day a stray dog climbed through a window and approached her in the warehouse. Stevenson became unhinged. She started spraying deodorizer on the dog and yelling and cursing. She then went home, reporting a rush of blood to her head and backache and headache.

The next day she walked into the president’s office and began to scream and swear about the stray dog for 10 minutes. Stevenson left work and contacted OSHA about the dog. She then went to the emergency room complaining of a headache, insomnia and anxiety related to an “emotionally stressful incident at work.” Her EKG and CAT scans were normal and she was discharged with a diagnosis of “anxiety and stress” and given oral medication.

She called in sick the next three days. Upon her return, she discovered her desk had been moved. Her response: call the police. She left work again feeling distressed. This time, the company changed the locks out of “fear of what she might do” and fired her.

Stevenson filed a FMLA lawsuit. The company argued that it wasn’t liable because she never notified it that she needed FMLA leave. The company cited cases saying that calling in sick is not notice. (Stevenson v. Hyre Elec. Co., 7th Cir., 10/16/07)

Next time you have to decide if an employees’ medical condition is “serious” enough to qualify for FMLA leave, maybe you should grab your Grey’s Anatomy medical book (or maybe just watch the TV show) to brush up on your ability to diagnose. That seems to be what a court is urging in an important ruling that many have overlooked.

The FMLA requires employees to give notice to their employers about their health conditions. If the condition rises to the “serious” level cited in the FMLA, the employee is eligible for FMLA leave. But what if those hints are dropped one at a time? Are employers now supposed to add up all the employee’s symptoms, statements and absences to ultimately diagnose the situation? Yes, as the following case shows.

Case in Point: David Burnett worked for a Chicago-based property management company. He got apartments ready for rental. One day, he told his boss that he was having health problems requiring medical attention. First, he said he had a “weak bladder” when he turned down a transfer to a job that gave limited bathroom access.

A few months later, Burnett gave his boss a copy of his doctor’s order requesting blood work. He also said he had high cholesterol, a high PSA (prostate-specific antigen) and more upcoming doctor’s appointments. The boss gave him leave to attend those appointments. At a later meeting with his boss, union reps and company officials, Burnett said he’d been “feeling sick.” He compared his situation to his brother-in-law’s, who had been diagnosed with prostate cancer.

A month later, Burnett gave a different manager a request for time off to get a biopsy. Burnett’s boss never saw the request. During the following week, the boss reprimanded Burnett several times for poor performance and disruptive behavior. During a union hearing about those reprimands, Burnett commented that if he were diagnosed with cancer, he’d likely kill himself because he had no one to care for him.

Following the biopsy, Burnett delivered a doctor’s note that restricted him from heavy lifting. The next day, Burnett told his boss he felt sick and wanted to go home. The two argued and Burnett went home. The next day, Burnett was fired for insubordination. Eleven days later, he was diagnosed with cancer. He sued, alleging interference with his right to take FMLA leave. (Burnett v. LFW Inc., d.b.a The Habitat Co. 7th Cir. 2007)

The Family and Medical Leave Act (FMLA) is one of those special “e-word” laws -- entitlement.

While some employment laws (like the ADA) say you don’t have to accommodate employees if doing so would cause “undue hardship,” that’s not the case with the FMLA. The law doesn’t care about your hardship. You can never interfere with a person’s FMLA leave; nor can you fire them for taking FMLA leave. Period.

But what do you do when a chronically absent employee—who’s already received a last-chance warning—is absent again? Do you have to sort out whether that final “last-straw” absence is covered by the FMLA, even if you could have fired the person weeks earlier for being MIA?

The U.S. Labor Department issued a report yesterday that said all is not well in the land of FMLA. Shocking, truly shocking! And we in the employer community thought things were so rosy…

Actually, employers have long known of the hassles and headaches cause by the 14-year-old Family and Medical Leave Act. The law may have been born with good intentions, but employees have quickly learned how to “game” the system, and employers are having a devil of time trying to comply.

The new Labor Department report—which summaries 15,000 comments from employers and workers since last December—makes that point clear. It highlights several employer pain points, such as dealing with intermittent leave, defining a qualifying “serious” condition and struggling with questionable “last-minute” FMLA leaves.

Case in Point: A new court ruling in New York shows the type of lawsuit employers are having to fight off these days: Ricardo Brown, an accountant, called in sick for two days in a row during the busy auditing season. He had his doctor fax a handwritten note stating Brown couldn’t come to work for two weeks. The note didn’t specify why. Brown then left for Costa Rica without telling anyone. He didn’t call in.

The real reason he wasn’t at work: He was having a nervous breakdown due to the progression of an underlying HIV infection—something his employer didn’t know about. The company fired him for abandoning his job.

Brown sued, alleging interference with his FMLA rights. But the court tossed out the case, reasoning that there was no way the employer knew he was suffering from a serious health condition. All the employer knew was that Brown had disappeared and didn’t call in. While this employer won, it still had to fight the issue in court ... at considerable cost. (Brown v. The Pension Boards, No. 04-Civ-10062, SD NY, 2007)