Language in FMLA notices important, court rules

As an employee, would your choices about leave be different if you knew that your job was safe upon your return? Chances are that the answer would be “yes.” At least a federal appeals court would say so as well.

The court found that a bank employee who was ultimately terminated for failing to adhere to a performance improvement plan after being granted FMLA leave was entitled to move past summary judgment in his employment discrimination claim against his employer. The employee initially sought leave to deal with issues related to depression. His application indicated that he would be out for one month based on his physician’s recommendation.

Fearful of losing his job, the employee returned to work but was sent home because of the previous note on his FMLA application. Nevertheless, he came back the next day with permission to work and was given a three-day work assignment, but he did not perform on the assignment (ostensibly because he was not ready to return to work), and was then put on an improvement plan, which he ultimately did not complete.

After suing the bank and having his case dismissed on summary judgment, the employee appealed. A federal appeals court found that his initial FMLA notice did not include language indicating that his job would be safe, and that the employee would have made different choices about getting back to work before he was ready. The case was then sent back down to the trial court for further proceedings.

While it remains to be seen whether the employee will ultimately prevail, the case exemplifies the need for employees to clearly review their FMLA leave notices with an experienced employment law attorney

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