FMLA – An employee reports to his employer that he has a serious back injury and that he cannot perform his regular duties as a maintenance worker. The employee places the employee on FMLA leave, which the employer acknowledges in a letter “could” last up to 12-weeks. The employer does not notify the employee of a definite end date for the leave.
The employee remains on leave for the next twelve weeks without communicating with the employer about his return to work date. At twelve weeks plus seven days, the employee receives a letter from his employer telling him he has been terminated due to exhaustion of his FMLA leave.
What could the employee have done to avoid this surprise?
Generally speaking, under the FMLA, an employee who works for an employer of greater than 50 employees, for a year or more, and who has a serious health condition, is entitled to twelve weeks unpaid medical leave and reinstatement to his job thereafter. Under FMLA regulations an employer is required to communicate with the employee about his leave in two ways:
1) The employer must provide a notice letter stating the employee’s eligibility for and his rights and responsibilities under the FMLA; and
2) The employer must provide a notice letter “designating” that the amount of “FMLA qualifying” leave that will be extended.
Note there is no requirement that an employer send the employee a third letter warning the employee that his leave time is about to expire!
Complicating matters, sometimes a specific amount of leave time is not noted on the “designation” letter because it is not yet known how much time will be medically necessary. In this case, the onus is on the employee to ask the employer for a report of remaining leave time available. 28 CFR § 825.300 (d)(6).
Communicate With Your Employer
For these reasons, an employee should not rely exclusively on the employer to keep track of leave time and to warn him that leave time is almost up. An employee who wants to avoid surprises should communicate with his employer about his leave time while on leave. Regulation requires the employer to respond to requests for information. 28 CFR § 825.300 (c)(5).