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Communication of FMLA Policy Is Key in Defending FMLA Interference Lawsuit

Lexology (03/28/12) R. Michelle Tatum

In the case of Thom v. American Standard Inc., the Sixth Circuit affirmed a partial summary judgment for an employee’s Family and Medical Leave Act interference claim because the employer did not inform him of the method used to compute his FMLA leave and ruled that the employee was entitled to double compensatory damages because he was terminated in bad faith.

Employees are entitled to 12 work weeks of FMLA leave during any 12-month period, and employers can choose from four methods to compute the leave: the calendar year; any fixed 12-month “leave year,” such as a fiscal year or the year beginning with the employee’s anniversary date; the 12-month period from the start date of the employee’s first FMLA leave; or a rolling 12-month period measured backward from the date of any FMLA leave. Employees can use whatever option is most beneficial to them if their company does not state which method it uses. Companies must provide 60 days’ notice before implementing their method of choice, and they should distribute a written policy and have employees sign it. They should consider employees already on FMLA leave or those who requested leave during that 60-day period, permitting them to use a more liberal way to compute leave but indicating how subsequent leave requests will be handled.