Write Your FMLA Leave Policies Carefully

Issue: Your company provides its employees with a notice describing their Family and Medical Leave Act (FMLA) rights. However, your notice does not unambiguously and “explicitly state that FMLA leave would run concurrently with paid sick leave and vacation time.” Is your notice nevertheless adequate under federal law and regulations?

No: Even though an employer’s FMLA guidelines “arguably” provided notice that FMLA leave would run concurrently with available paid leave, a federal district court in Chicago ruled that the guidelines were too “ambiguous” to entitle either party to a dispositive finding that the guidelines did or did not provide adequate notice, as required by FMLA regulations, that the employees’ FMLA leave and available paid time off would run concurrently.

How clear does notice need to be?
To determine whether the notice was adequate, the court compared the language the employer had used and the language of the “Prototype Notice” found in the regulations. As the court explained, the language the employer had used (“any leave requested for the employee’s own illness will be paid through accrued sick time … [and] vacation time, personal and bonus time may is [sic] payable once the sick bank is exhausted”), even setting aside the typographical error, didn’t make it “unambiguously clear” that what the employer was trying to say was that (1) it would substitute vacation leave and sick leave for FMLA leave, and (2) the employees’ FMLA leave would run concurrently with paid time off.

In contrast, the prototype notice did explicitly specify when, and under what “conditions” an employee’s paid leave would be substituted for FMLA leave. The prototype stated in pertinent part, “This is to inform you that … [ ] you may elect to substitute paid leave for unpaid FMLA leave. We [ ] will [ ] will not require that you substitute accrued paid leave for unpaid FMLA leave. If paid leave will be used the following conditions will apply:” When compared against the clear wording of the prototype, the court declared, the employer’s guidelines were simply “too ambiguous” to support a finding that they had provided the employee with “adequate notice as a matter of law.”

What should you do?
Employers who have written guidance for employees about benefits or leave rights, such as employee handbooks, must include information about FMLA entitlements and employee obligations, including any requirement that an employee provide a fitness-for-duty certification to return to work.

When employers do not have written policies, manuals, or handbooks describing employee benefits and leave provisions, employers must provide clear and unambiguous written guidance about employee rights and obligations to employees who request leave under the FMLA. It is strongly suggested that employers duplicate and give employees a copy of the FMLA Fact Sheet, which can be obtained from local offices of the Wage and Hour Division of the Department of Labor.

Cite: Chan v Loyola University Medical Center, (ND Ill 1999) 138 LC 33,918.

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