(Published November 13, 2008)
Not too long ago, I read a court case involving the Family and Medical Leave Act (FMLA). An employee had been on FMLA leave to care for her husband, who subsequently passed away. I think we would all recognize that, strictly speaking, FMLA ends there — at least FMLA for caring for a family member.
In this particular situation, the employee called up her employer, in tears, and asked for an extension of her leave, which was granted. However, here is where the left and the right hand did not appear to talk to each other. The employee evidently thought that she was asking for an extension of her FMLA leave; the employer evidently thought she was asking for bereavement leave.
Obviously, I am only guessing here. I was not involved in the situation, and I was not in the courtroom. But from what I have read, the lack of communication (yes, there's my hot button!) resulted in the employer terming the employee for not returning to work according to company policy. The employee, believing that her FMLA leave had been extended, sued and won the right to go to trial.
I don't have a problem with the court's decision — I think it was the right one overall. But I tend to think that it was the right decision for the wrong reason. You see, the court cited the fact that the employee was crying when she called her employer to request the additional leave. The court decided that this, added to the fact that the employer knew of her husband's death and that she had asked for leave to "take care of things," was sufficient for the employer to realize that she was asking not for an extension of FLMA existing leave, but new FMLA leave for herself for grief and emotional stress.
The judge put the burden of proof on the employer to follow up with the employee if there was any question as to the type of leave being requested. And, of course, that is where the burden of proof belongs. It was the employer's responsibility to affirmatively confirm that it was bereavement leave, not additional FMLA leave, and/or to ask for medical documentation to support the continuation of the leave as FMLA. That's why I agree that the correct judgment was made. The employer, not the employee, is responsible for the determination of leave.
But I'm not sure I agree that the employee simply crying when she called in was really enough to put the employer on notice that she was requesting FMLA leave for herself. I agree the employer should have clarified that they were approving bereavement leave, not FMLA leave. But, as one HR manager I know put it, the employer who can diagnose a certifiable medical condition over the phone should be practicing medicine, not answering the phone. I don't think it's reasonable to expect the employer to hear someone crying on the phone and immediately diagnose a medical condition. Yes, the employer goofed. Yes, I think under the circumstances, the employee had a reasonable expectation to assume that her FMLA was being continued.
But is crying enough to put the employer on notice? I don't think so.
Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.
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