In the case, a woman took intermittent leave starting in September, when she had worked enough hours the previous year to be eligible. She continued taking leave through the end of December.

The company calculated leave entitlement based on the calendar year. When she asked for more time off in January, the request was denied.

Why? Because she hadn’t worked 1,250 hours in the previous 12 months. She sued the company, claiming FMLA was unlawfully denied. She argued that she’d already been approved for leave and could continue taking it since she was eligible when she first needed time off.

The court didn’t buy it. Once the new leave year started, the employee had to be re-approved. By her logic, employees could take intermittent FMLA leave forever, even after they no longer met the eligibility requirements.

Cite: Davis v. Michigan Bell Telephone Co.

As HR knows, companies have the option of calculating leave entitlement based on:

• the calendar year (January to December)
• a year based on another fixed date (like the employee’s date of hire), or
• a rolling year, counting backwards from the date an employee needs leave.

In one recent court case, an employee took leave beginning in December and hadn’t returned to work by the middle of March — taking almost 14 weeks of leave. The company terminated her, and she sued.

The court ruled in the employee’s favor. Why? The company never spelled out, in its handbook or to the employee once she asked for leave, how the year of eligibility would be calculated. She argued she should be able to use the calendar year method — thereby getting 12 weeks in December and another 12 starting in January.

Bottom line: If companies don’t make the rules clear, courts will let employees use whichever method benefits them most.

Cite: Spencer v. Marygrove College

In one recent case, an employee was disciplined several times for various policy violations. She was close to being fired on a few occasions, but managed to convince her supervisor to suspend her instead.

Eventually, she was fired after missing work — without authorization — because of knee problems. She sued the company, claiming the absence should’ve been covered by FMLA.

The company disagreed. Why? Because she wasn’t eligible to take leave. When all of her time was added up, it turned out she only worked 1,248.8 hours in the past 12 months — 1.2 hours shy of what FMLA requires.

The court agreed with the company, which had documented payroll records to support its argument. The woman wasn’t entitled to FMLA leave.

Cite: Pirant v. U.S. Postal Service

Under FMLA, some employees aren’t eligible for leave. But that doesn’t mean they can’t sue their employers for FMLA mistakes.

In one recent case, an employee took some time off for surgery. While he was gone, the company put someone else in his position.

When he came back to work, his boss told him his job had been filled. The company offered him a new position, which he turned down. He was terminated, and he sued under FMLA.

The company’s defense was clear-cut: The employee wasn’t on FMLA leave, since he wasn’t eligible for FMLA. The company’s headquarters had more than 50 workers, but the man worked out of his home, more than 75 miles away.

The company claimed it had just given him some time off — without the obligation to put him back in the same or similar position.

But the employee won the case. Why? A glitch in the handbook.

The company’s leave policy explained employees’ rights under FMLA and listed all the eligibility requirements — except the “50/75″ rule. When the employee told his boss he needed leave for surgery, he was sent a letter restating the handbook’s FMLA policy.

That gave him reason to assume he was taking FMLA-protected leave, the court ruled — so the company had essentially trapped itself into offering it.

Prevent managers’ mistakes

As if FMLA wasn’t tricky enough, there are ways employers get in trouble even when employees aren’t covered by the law, as this case shows.

In other cases, employees who hadn’t worked for 12 months or 1,250 hours have been mistakenly told by managers they could take FMLA — and then sued when they came back and didn’t get put in their old jobs.

To avoid this costly blunder, here are three steps all employers can take:

• Check policies. A good FMLA policy tells employees their legal rights and all the requirements they need to meet to be eligible. If you have to, give employees at different locations different versions of the handbook so there’s no confusion.
• Train managers. Managers need to know who’s eligible for leave and who isn’t. Otherwise, employees might be told something that conflicts with the law.
• Make sure HR handles all leave requests. Managers should always come to HR first when an employee needs leave. Make sure they understand the problems that can come up when supervisors approve or deny leave on their own.

Cite: Peters v. Gilead Sciences, Inc.

Answer: The employee must complete a year of work before the leave starts.

That’s the conclusion of one recent court case. Ten months after he started working, an employee was injured and requested leave starting immediately. His employer refused, because he was still two months shy of being eligible.

He sued, claiming he’d become eligible while on leave, and the first two months of time off would be “transformed” into FMLA-qualifying leave.

The court disagreed: To be eligible, an employee must have worked for 12 months before the leave was set to start.

Cite: Adly v. Supervalue, Inc.