Most employer Family and Medical Leave Act (FMLA) policies restate the notice requirements and other information mandated by the FMLA posting rules. In addition, they should state any company-specific policies regarding FMLA leave.  If certain issues are not specifically addressed in the policy, it may end up in the court’s hand to decide during a law suit.

Components of a standard FMLA policy are:

1.     Eligibility and Definitions

2.     Amount of Leave

3.     Categories of Leave

4.     Computation of Leave

5.     Notice Requirements of Leave (Applying for and Reinstatement)

6.     Certification Requirements

7.     Benefit Coverage Terms

8.     Other Administration Policies

Under this last general component an employer can modify FMLA terms beyond what the law covers in a few areas. These areas are:

·       How the leave will be calculated: Calendar year or rolling forward/backward calculations method?

·       How other paid time off benefits coordinate with FMLA: Must other paid time off benefits be used simultaneously with FMLA?

·       Can the employee engage in other activity during FMLA such as to take a vacation or take work elsewhere during the leave?

In the case of Ibewuike v. John Hopkins Hospital (D. Md.) 5/1/2017, a nurse took extended medical leave after her FMLA leave expired. She had originally taken a 12-week FMLA leave in anticipation of the birth of her child in August of that year. She experienced complications with her pregnancy that changed her original leave time off.  Although she amended her requested leave, she gave birth early by cesarean. Extended leave beyond the FMLA was granted to accommodate her recuperation beyond the original FMLA leave. In the meantime, her doctor provided her a light work restriction form that allowed her to work light duty for the six weeks following her original FMLA leave. She took this requirement to her supervisor, but was told that there was no light duty available.

One day after she was informed her light duty request could not be accommodated she received a job offer from another hospital and began work approximately one week later.

When John Hopkins Hospital learned of her other employment they terminated her employment.  She violated its “Dual Employment” clause that required notice of any other employment during a leave and consent by the employer to do so.

The nurse sued the hospital stating it had violated her FMLA rights by retaliating against her for taking protected leave.

The Maryland District Court sided with the employer because of its policy modifications to its FMLA and other medical leave policies. It first held that because the nurse was granted both her original and amended requests for FMLA leave and received all the leave time she was entitled to, the employer had not violated the FMLA. Further her extended leave that she attempted to modify by requesting light duty was not a failure to accommodate her reinstatement request because the hospital did not have to allow her to work if she was unable to perform the essential functions of her job as registered nurse. Under FMLA she is not entitled to an entirely different position.

As for the retaliation allegations, the court held she could not have suffered retaliation because her own conduct refuted that she was terminated early during her FMLA.  She clearly sought and received an extended leave and also received extended leave with benefits (health, dental and short term disability) that continued after her original FMLA leave was exhausted.

Lastly, her suit alleging that her termination was actually a pretext for FMLA retaliation did not hold up. The court found this argument did not stand up against her admission that she knew of the hospital’s dual employment policy and that she had not obtained consent to take employment in spite of that policy.

The employer won its case because it had clear coordinated leave and dual employment policies in place. Employers should carefully review and construct their different policies so as to ensure they coordinate with one another as circumstances change – a challenging job when so many different circumstances may arise.

Source: CCH Answers Now: Nurse fired for violating dual employment policy while on extended leave can’t advance FMLA claims — FEDERAL NEWS