Wednesday, September 3, 2008

Sometimes the little things go a long way

Often times, we forget that the law is a floor and not a ceiling. For example, just because the FMLA caps unpaid leave at 12 weeks does not mean that every employee who cannot return to work at the end of 12 weeks should be terminated (in fact, the ADA may require otherwise).

De la Rama v. Illinois Dept. of Human Servs. (7th Cir. 9/2/02) illustrates this point. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not tell her employer until much later. Instead, she continued to call in sick without explaining the nature of her illness. Ultimately, in October she submitted a medical certification and requested for a leave of absence, for which the employer granted FMLA leave. De la Rama was out on unpaid FMLA leave for 17 weeks, and upon her return assigned to a different unit under a new supervisor at her request. Her absences in July and August, however, were treated as unauthorized.

She sued, claiming that the classification of her July and August absences as unauthorized interfered with her rights under the FMLA. The court disagreed:

[I]n light of the fact that de la Rama was permitted to take seventeen weeks of leave—five weeks more than the twelve weeks the Department was required to give her under the FMLA—we find it difficult to see how the Department interfered with her entitlement to leave at all.

The employer's generosity in giving de la Rama the leave she needed once she documented her need was very persuasive to the court in deciding whether its designation of her prior leave as "unauthorized" violated the FMLA. In other words, its willingness to go above and beyond for an employee demonstrated that it did not harbor an intent to violate the Act. Keep this in mind the next time you are faced with the prospect of terminating an employee at the end of the 12th week of leave, or extending the leave for a few extra weeks to allow the employee to return to work.