Miscalculating worker’s FMLA leave costly to employer

Under the federal Family and Medical Leave Act, employers of a certain size must allow workers to take up to 12 weeks of unpaid leave in a year to deal with personal illness or care for sick family members. If the worker fails to come back when the leave is exhausted, he or she can be considered to have “voluntarily resigned” and the employer no longer has to keep the job open.

But a recent case from Virginia shows that employers must be very careful to calculate leave time accurately and make sure they’re acting in good faith when they decide an employee has voluntarily resigned.

In that case Lisa Perry, a county employee, injured her shoulder in a fall on a sailboat in the spring of 2014. Her doctor recommended she take 30 days leave from work and return for a follow-up appointment with him on July 31 — the day before her employer determined that she was due back at the office.

At the appointment the doctor recommended that Perry not return to work until August 4. But when she failed to return on August 1, her employer sent a termination letter. When she did return on August 4 as the doctor recommended, she was told she had voluntarily resigned her job.

Perry sued for violation of the FMLA, complaining that HR personnel barely waited one business day after her leave was set to end before terminating her.

This amounted to bad faith, according to Perry.

A federal judge agreed, while acknowledging that Perry didn’t show up on the end date indicated on her leave request and didn’t communicate about the delay with her employer.

Specifically, the judge found that under both FMLA rules and the employee handbook, Perry had four business days to notify the county about any changed circumstances that might cause a delay, and that she had satisfied this deadline by returning to work on August 4.

The judge also found that the HR director knew about Perry’s doctor’s appointment and was aware that the doctor might extend her leave, but still rushed to fire her.

As a result of this bad faith, the county was ordered to pay $750,000 in lost wages and bad faith damages.

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