Employee Leave of Absence Rights Are Contingent on a Clear Request

The Third Circuit Court of Appeals recently ruled in favor of an employer that terminated an executive employee for poor job performance.  The ex-employee, who had primarily worked remotely, claimed that his Family and Medical Leave Act (FMLA) rights were interfered with because, even though he told his employer that his wife was having surgery and required care and assistance, he had always also stated in conversations with the employer that he would continue as he had been working from home. The appeals court found that the ex-employee had never put the employer on notice that he needed a leave of absence.

With the prevalence of remote workers, this decision provides helpful guidance to human resources executives and leave program administrators.  If a remote worker notifies the employer of a family member’s health condition, we recommend that the employer specifically ask whether the employee will continue the status quo, i.e., “I am sorry to hear about your [family member’s] situation.  Will you continue working from home as you have been during [his/her] recovery?”  If the employee says “yes,” follow up with a confirming e-mail.  If the employee says “no,” then begin the FMLA leave certification process.

Read the appeals court opinion here.