Contributed by Allison Chaplick
On December 23, 2011, a Wisconsin federal district court in Egren v. Braeger Company of Wisconsin, Inc., (No. 10-C-60) denied summary judgment in an FMLA retaliation case brought by a Chief Operating Officer (COO). In Egren, the COO took one day off every three months to drive his son, who had Down’s syndrome, to doctor’s appointments, and during his lunch hour, took his wife, who had cancer, to her medical appointments three times a month. The employer’s policy required employees to request a leave of absence if they were unable to work for “medical reasons for a period in excess of three consecutive days.” Ironically, it was the COO who administered the company’s FMLA policy, and because his need for FMLA leave did not fall under the company’s FMLA policy, the COO never advised his direct supervisor that he needed FMLA leave. The company terminated the COO claiming that this time off affected his ability to perform his job. The district court found that the COO had engaged in statutorily protected activity, noting that “it does not take much for an employee to invoke his FMLA rights,” because all an employee has to do is indicate that he needs leave to take care of a seriously ill relative in order to invoke FMLA protections.
Employers should be prepared to properly handle its employees’ medical leaves and have a proper FMLA leave policy that guides both management and employees on the following practices and procedures.
An employee must:
- Provide 30-day advance notice if the need for leave (including intermittent or reduced schedule leave) is foreseeable. If not foreseeable, the employee is required to provide notice as soon as practicable (i.e. within 1 or 2 business days).
- Explain the reasons for leave so employer can determine whether leave qualifies under FMLA. Calling in “sick” is insufficient.
- Provide complete and sufficient requested certification to employer within 15 calendar days after employer’s request (http://www.dol.gov/whd/fmla/).
An employer must:
- Post US DOL workplace poster and distribute an FMLA policy (http://www.dol.gov/whd/regs/compliance/posters/fmla.htm).
- Notify the employee of eligibility when leave is requested or acquires knowledge that leave may be for FMLA purpose, and inform the employee of rights under the FMLA. (http://www.dol.gov/whd/forms/WH-381.pdf). Notify employee that leave is/is not designated and construed as FMLA leave. (http://www.dol.gov/whd/forms/WH-382.pdf).
- Request certification at the time employee gives notice of need for leave, or within 5 business days, and advise the employee of consequences of failure to provide adequate certification.
If an employee fails to provide timely notice or timely and complete certification, employers may deem any time off as non-FMLA leave and subject the employee to time and attendance policies. Conversely, an employer’s failure to follow the notice requirements may constitute interference with, restraint, or denial of the exercise of an employee’s FMLA rights. With a good FMLA leave policy and consistent practice and enforcement, an employer can properly defend against FMLA claims.