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What I’ve Been Reading This Week: FMLA Edition


This week, I came across several well researched FMLA articles that I found to be relevant and useful to employers and HR readers alike.  While some employers or HR professionals might not deal with FMLA matters often (if at all), FMLA is such a hot button issue for many that I think it is appropriate to dedicate this post solely to that topic.  I remind readers, as always, to consult the law in their particular state/circuit as to any FMLA issues they may confront before deciding how to act on a particular situation.  However, the below articles are well worth a read for all, regardless of the state/circuit you find yourself.

As always, below are a couple articles that caught my eye this week.


Reminder to Employers: Make Sure to Notify Employees When Their FMLA Leave is About to End

A few attorneys at Jackson Lewis have been writing a series lately on common mistakes employers can make in regard to FMLA leave.  In this most recent article, they remind employers to ensure that they notify employees before the FMLA leave expires.  As readers recall, the FMLA provides eligible employees the option to take protected, unpaid leave for up to 12 work weeks over a 12 month period.  However, failure to notify an employee that they are about to exhaust their leave and subsequently terminating that employee can expose the employer to liability.  To illustrate the point, two relevant cases from Kentucky and Illinois are noted as a reminder to employers that this issue has come up many times and been decided in favor of the employees.  As the article correctly points out, communication with employees prior to the FMLA leave ending is pivotal before any steps are taken to terminate an employee.  


Fifth Circuit Opinion Provides Guidance As to Whether Employees Can Voluntarily Work During FMLA Leave

Recently, the Fifth Circuit Court of Appeals issued a ruling in D’Onofrio v. Vacation Publications, Inc. which addressed whether an employee can voluntarily choose to work during FMLA leave without an employer risking a lawsuit for denying the employee entitlements under the FMLA.  JDSupra recently wrote an article in regard to this case to remind employers that giving employees the option to work while on FMLA leave does not amount to interference with FMLA rights so long as working while on leave is not a condition of employment.  With that being said, note that the FMLA does not prohibit an employer from contacting an employee during leave with a de minims request or short and simple questions.  However, as the article suggests, employers would be wise to limit contact with employees that are on FMLA leave so as to avoid any possible claim of wrongfully denying the employee entitlements under FMLA.


'Honest Belief' Valid Defense to FMLA Retaliation Claim, According to Third Circuit Court

Casey Green wrote a brief note recently about a Third Circuit court which held that an employer's honest belief that an employee was misusing FMLA leave was a valid defense when confronted with an FMLA retaliation claim.  Similar to the Fifth Circuit case, above, I remind readers to review the relevant case law in their state/circuit to determine what applicable standards and defenses apply to FMLA cases.  Regardless, this Third Circuit case, Capps v. Mondelez Global, LLC, is noteworthy and well worth a review.


Are Employees That Use FMLA Leave Required to Follow Call-In Procedures?

Whether employees that are on FMLA leave are required to follow an employer's call-in procedures is one of the more nuanced questions that often arises in regard to the FMLA.  Luckily, Jennifer Carson at HRDrive provides a clear and concise answer:  Yes, but make sure the policy is consistently enforced for all employees (those on FMLA leave and those that simply call in sick, unrelated to FMLA leave).  Employers would be wise to have a policy in place that applies to all employees and stipulates when the employee must call in (for instance, no later than an hour before their shift is to start), who the call should be directed to, what the content of the call should be, etc.  However, note that an exception is carved out for employees on FMLA leave.  The requirement to follow an employer's call-in procedure can be excused if an unusual circumstance arises (such as an emergency that prevents the employee from calling in).  If there is one takeaway for employers here, it would be to ensure that the call-in procedure is uniformly applied to all employees.

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