- An employee was fired for performance issues, not his requests for leave for his wife's pregnancy, the 2nd U.S. Circuit Court of Appeals ruled (Kelly v. Hartford Financial Services Group, Inc., No. 19-2865 (2nd Cir. July 1, 2020)).
- Bryan Kelly sued Hartford Financial Services Group for interference and retaliation under the Family and Medical Leave Act (FMLA). Kelly said he "informally and verbally" notified his managers of his wife's second pregnancy and his intent to take FMLA leave about eight months later. But he "never once" applied for leave in the six months between his notifying his managers and his termination, the court noted.
- The district court ruled for the employer on summary judgment. The appeals court affirmed the lower court's decision for "substantially the same reasons" — Kelly's "well-documented and long-running behavioral and performance issues," which began before any FMLA request or leave.
The FMLA makes it unlawful for an employer to "interfere with, restrain, or deny the exercise of, or the attempt to exercise" the rights provided by the FMLA, meaning that employers can't discriminate or retaliate against employees who take or attempt to take FMLA leave. Employees generally must be permitted to take FMLA leave when they are entitled to do so.
Generally, once an employer is aware that an employee needs leave for a reason that might be covered by the FMLA, it has five days to give the employee an eligibility determination and a notice of rights and responsibilities. The U.S. Department of Labor's (DOL) Form WH-381 can satisfy this requirement.
DOL has warned employers not to delay FMLA designation. In a Sept. 10, 2019, opinion letter, the federal agency said employers may not delay designating leave as FMLA leave, even if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the designation be delayed. Last month, General Motors Co. paid $12,265 to settle charges that it improperly disciplined an employee for absences protected by the FMLA. An investigation by DOL's Wage and Hour Division determined that GM's delay in approving FMLA leave for the employee caused the worker to be suspended for missing work.
HR should ensure supervisors and managers are trained on the FMLA's requirements, including the ability to recognize requests, to know when to escalate them to HR and to avoid any statements or actions that could discourage an employee from taking leave.