If an employee has taken FMLA leave, that can make the situation even more complicated. Take this recent case as an example:

A sales rep had been highly regarded by his employer. Three out of his four most recent performance evaluations rated him as “exceeding expectations.”

That changed after he took a month of FMLA leave to be treated for alcoholism.

Two weeks after he came back, it was time for his next review. His boss noted that his sales had dropped and there had been problems with his communication skills. The review concluded the employee failed to meet expectations, and he was placed on a 30-day performance improvement plan.

When he failed to bring his numbers back up in time, he was fired — and he sued the company. He claimed he was a good employee and was unfairly terminated because he took FMLA leave.

The employer argued that despite his previous success, his performance started to slip, as his most recent review showed.

But the company lost the case.

The reason: The court wasn’t convinced he would’ve gotten a poor review if he hadn’t taken leave. As the judge noted, missing a month of work must have caused his sales to suffer. The company should have adjusted its standards to account for the time he was gone.

Managers need to be careful about how they evaluate employees who return from medical leave. Even if bias isn’t intentional, companies can still get in trouble when an adverse action is in any way tied to an employee’s use of FMLA.

Cite: Burris v. Novartis Animal Health U.S., Inc.

The answer depends on why they don’t return.

Under the FMLA, employers can’t recover premiums paid for health coverage if an employee fails to return to work because of their own or a family member’s serious health condition, or due to “other circumstances beyond the employee’s control.”

Those circumstances include:

• the employee’s spouse has been transferred to a job more 75 miles from your company’s location
• the employee is laid off while on leave, and
• a “key employee” is denied reinstatement by the company.

In other cases, employers can recoup the costs if employees fail to return to work. Under the law, “returning to work” means working for at least 30 days after taking leave.

So if an employee resigns or retires within 30 days of his or her return from leave, the company may be entitled to recover its share of the health benefit premiums.

That’s what two employees claimed in one recent court case.

The employer gave all full-time employees 120 hours of sick time a year. Employees who exceeded that allotment were disciplined.

Two employees had each taken close to 120 hours of sick leave — plus, they had both taken time off for FMLA. So by the end of the year, they’d used more sick time than they were allowed and were suspended without pay.

They sued, claiming they were disciplined because they took FMLA.

The company’s response: Employees had the choice of whether they wanted to use paid sick leave while they were on FMLA. In this case, the employees chose to take the paid time.

Then, when they tried to take more sick days after that, they were punished.

Who won the case?

Answer: The company.

The employees chose to use sick leave when they took FMLA and continued to use sick time when they knew they’d run out. “In other words,” the judge said, “they want more paid sick time than other [employees] got.”

The court didn’t buy their argument and the case was thrown out.

Cite: Tucker v. County of Monmouth

In one recent case, an employee missed 10 days of work because of a medical problem. When she told her boss she was going to be absent again, the boss said she may be able to take FMLA leave.

She declined, apparently because she may have needed surgery in the near future and was waiting to see how much time off she’d require at that point.

So she took the days off without completing FMLA certification. The problem: She was out of her allotted sick leave and had already been warned by her manager about excessive absenteeism. After she missed several days, she was fired.

She sued, claiming the company violated the FMLA. Her argument: The supervisor should have warned her that her job would be in jeopardy if her leave was unprotected.

But the judge didn’t buy it. The manager did the right thing: He offered FMLA when he learned she had a medical issue. The law didn’t require him to do anything more.

The employee should have understood the difference between FMLA and unprotected leave — and she’d already been warned about missing too much time.

Cite: Knox v. City of Monroe

Generally, employees on FMLA don’t need to continue earning those benefits. Benefits are accrued based on employers’ individual policies.

For example, if your company gives employees vacation time based on the hours they work, they don’t need to accrue any PTO while on medical leave (as long as other types of unpaid leave are treated the same way).

The same goes for calculating seniority. Hours on FMLA don’t need to be factored into the equation.

But there is one area to look out for: Many companies let employees earn PTO while they’re out on paid vacation. When FMLA runs concurrently with paid leave, employers should continue following that policy.

Otherwise, they could get in trouble for treating an employee using FMLA leave differently than employees who haven’t taken FMLA.

An employee asked for and was granted 12 weeks of FMLA leave. However, after about 10 weeks, she was told by her doctor that she would need extra time away from work.

When she informed her manager, the company terminated her. The employee wouldn’t have been able to return until almost a month after she ran out of leave.

However, the company did pay her health benefits for the full 12 weeks.

The employee sued, claiming she was fired after using only 10 weeks of FMLA leave.

The company argued that she wouldn’t have returned to work in time to keep her job anyway, and she wasn’t denied any benefit she would’ve received if it had waited 12 weeks to fire her.

Who won?

The court agreed with the company. It was undisputed that the employee’s doctor didn’t clear her to return to work until almost a month after she would’ve run out of leave. The company gave her all the benefits she was owed and had no reason to delay the termination.

Cite: Roberts v. The Health Association

Many employers choose to have leave policies that are more generous than what the FMLA requires. But as a recent case shows, that doesn’t mean those companies are immune to lawsuits.

An employee needed two months off work after complications during surgery. His boss told him he could take paid leave for whatever time he needed.

Though the employee was eligible for FMLA, neither he nor his boss ever mentioned it as a possibility. Instead, he took time off and was paid his full salary until he was able to come back to work.

The manager told him his job would be open for him when he returned.

The problem: The supervisor couldn’t live up to his promise. Once he went back to work, the employee was put in a different position and given a pay cut.

He sued under FMLA, claiming he was unfairly denied reinstatement to his former position.

The company tried to have the case thrown out, arguing the employee had no right to reinstatement because he never took FMLA leave.

But the judge didn’t buy it. As the court ruled, most likely, the only reason he didn’t take FMLA is that his manager never offered it — and he was obligated to after he learned the reason the employee needed time off.

The company may have acted generously by giving the employee seemingly indefinite paid leave, but that didn’t mean he wasn’t entitled to the FMLA’s job protection.

Generosity’s not enough

The lesson for managers: It’s easy to think employees don’t need FMLA because the company’s offering a more generous leave policy and plans to keep the employee in the same job no matter what.

But as this case shows, those plans don’t always work out. And that makes employers an easy target for lawsuits.

Managers need to notify HR whenever they think an employee qualifies for FMLA so leave can be offered — no matter what the employer’s individual leave policy.

Cite: Smith v. Primecare Medical, Inc.

Employees are entitled to 12 weeks of traditional FMLA each year. Employers have the option of measuring the “year” based on the calendar year, a 12-month period starting the day the employee’s hired or a rolling 12-month period that starts the first time an employee takes leave.

But for military leave, the regulations that went into effect Jan. 16 say employers must use the rolling method, regardless of how other FMLA entitlement is calculated.

HR knows how to comply with all of FMLA’s requirements. But not all managers do — and they’re normally the first ones employees talk to when they need time off. That leaves many companies open to lawsuits caused by some common FMLA mistakes.

What’s the best strategy? Remind managers to come directly to HR any time they have a situation involving FMLA.

Otherwise, they may end up making these common mistakes that could get the company in big trouble:

1. Giving leave to ineligible employees – It’s important for managers to be aware of who’s allowed to take FMLA and how much time they get — otherwise the employer may be stuck granting more leave than the law requires. In one recent case, an employee on FMLA called her boss to ask for more time off because she needed follow-up surgery. Even though the extra time put her over her 12-week guarantee, the manager said it was okay. But when the company fired her for missing too much work, she sued — and won. The court ruled it was the supervisor’s responsibility to let her know she was out of leave (Cite: Cutting v. Ferrous Processing and Trading Co.).
2. Failing to adjust performance standards – Mangers can discipline employees for poor performance even if they take FMLA — unless the performance problems are somehow related to their medical leave. In a recent case, an employee was fired after she failed to meet a yearly sales quota. However, she sued, claiming the only reason she couldn’t close enough sales was that she was out on FMLA for three months. The court agreed — the company should have lowered the standard to account for the three months she missed (Cite: Wojan v. Alcon Laboratories, Inc.).
3. Asking for too much medical info – The FMLA places strict limits on what information employers can gather when employees take leave. In one recent case, an employee submitted a certification form listing her symptoms and how long the condition would last. But that wasn’t enough for her manager. The company asked her for another form, this time with a specific diagnosis. She refused and was fired after she began her leave anyway. The matter ended up in court, and the company lost. The employee’s first form had everything the company needed — verification that she had a serious medical condition, “medical facts” to back that up and a probable duration. Employers aren’t entitled to a specific diagnosis when an employee takes leave (Cite: McDougal v. Altec Industries, Inc.).
4. Delaying the response to a request – Managers are busy, but handing out FMLA paperwork is one task that can’t wait. Companies can be on the hook if it looks like they discourage employees from taking leave — even if an employee’s request is eventually approved. In a recent case, an employee told her boss she needed FMLA and asked for the necessary forms. She had to badger him several times and wait three months before she finally got them. Once she turned in the forms, HR approved the leave. But she sued, claiming the boss was trying to keep her from taking FMLA. The court agreed, and the company lost (Cite: Mueller v. J.P. Morgan Chase & Co.).
5. Confusing FMLA and unexcused absences – Between HR tracking FMLA use and managers tracking employee absences, it’s easy for the facts to get lost in the shuffle — and managers may end up disciplining an employee for being absent too often when some of that time was protected under FMLA. Before any absence-related action is taken against an employee who’s used FMLA, companies should conduct an audit to determine if any absences the manager has tracked should’ve been excused.

Here’s what happened:

An employee suffered a serious back injury. He requested two months of FMLA leave.

When he asked for time off, his manager allegedly warned him, “If you take that much leave, there will not be a job waiting for you when you get back.”

Nonetheless, he was allowed to take leave and was reinstated after two months.

Then, however, the employer underwent a company-wide reduction-in-force. The employee returning from FMLA had the lowest seniority in his department, so he was let go.

He sued, claiming he was laid off because of his FMLA leave. He pointing to the manager’s threat as his primary piece of evidence.

The court agreed with him and refused to dismiss the case.

In any other situation, the company may have escaped liability — after all, the employee was given leave, reinstated and chosen for the RIF based on objective, unrelated criteria. Normally, it wouldn’t have been hard to show the termination had nothing to do with his FMLA leave.

But in this case, the manager’s response to his initial request made all the difference for the judge.

Cite: Daugherty v. Sajar Plastics, Inc.