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Employer did not communicate FMLA policy, can't fire worker: Appeals court

Employer did not communicate FMLA policy, can't fire worker: Appeals court

CINCINNATI—An employer that failed to communicate its method of calculating Family and Medical Leave Act benefits cannot terminate a worker for violating its policy, a federal appeals court has ruled.

According to the Friday ruling by the 6th U.S. Circuit Court of Appeals in Carl L. Thom Jr. vs. American Standard Inc., the 36-year employee originally asked for FMLA leave from April 27, 2005, until June 27, 2005, for a nonwork-related shoulder injury, which the Tiffin, Ohio-based firm approved.

Subsequently, his doctor cleared him to return to work earlier, on June 13, 2005. When he was asked on June 14 why he had not returned, he said he would return to work on June 27 because of increased pain in his shoulder. He appeared at work on June 17 with a doctor's note asking to extend his leave until July 18. But he was told he was terminated because the company had counted every day from June 13 as an unexcused absence and that he had exceeded the absences allowed by the firm.

Under the law, according to the appeals court, there are two methods employers can use to calculate a worker's FMLA leave: “rolling” and “calendar.”

Under the rolling method, an employee's leave is calculated backward from the date an employee uses any FMLA leave. Under this method, Mr. Thom's leave would have expired June 13.

Under the calendar method, an employee is eligible for 12 weeks of FMLA leave each calendar year. With this method, Mr. Thom's allowed leave would have extended to July 14.


“American Standard terminated Thom for unexpected absences on June 17. Thus, Thom needs the ‘calendar' method to apply,” the appeals court panel ruled unanimously in upholding a lower court ruling on this issue.

Mr. Thom contended the company failed to inform him that it used the rolling method, and the appeals court agreed. “At no time throughout the FMLA process did the company mention to Thom that his leave time would be governed by a ‘rolling' 12-month period.”

“The only written document he received from the company stated that his leave would expire on June 27. He was only notified that American Standard had accelerated his return-to-work date on June 14, after it had already lapsed the day before,” the appeals court said.

The 6th Circuit panel said it agreed with the district court “that employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, American Standard's notice to Thom fell decidedly short.”

Disagreeing with the district court, the appeals court also held that Mr. Thom is entitled to the liquidated damages provided for in the FMLA, which calls for double damages.

Jonathan T. Hyman, a partner with law firm Kohrman Jackson & Krantz P.L.L. in Cleveland said this amounts to more than $312,000 in back pay and attorney fees. Mr. Hymen, who was not involved in the case, said the decision illustrates that it is not enough for employers to select a method to calculate their FMLA leave; they also must “tell it in writing in a policy.”

Absence and management experts say tracking and managing employee leave time is one of employers' biggest challenges given federal- and state-mandated leave laws, workers compensation claims and employer-provided leave.