August 27, 2024 | Category: Compliance, FMLA | Tags: , ,

A recent case out of the 11th Circuit provides employers with guidance on when FMLA entitlement should begin for employees. While this case is very fact-specific—meaning that the outcome occurred due to very specific circumstances— employers can glean helpful and applicable lessons from how the court ruled.

What is FMLA?

FMLA stands for Family and Medical Leave Act and it was a law enacted in 1993. It provides eligible employees of covered employers up to 12 workweeks of job-protected, unpaid leave in a 12-month period for specified family members and medical reasons.

This is a job protected benefit, which means that employers must maintain group health benefits coverage for employees on FMLA leave under the same terms and conditions as if the employee had not taken leave. Additionally, they are obligated to ensure that the position the employee held— or an equivalent position— must be available upon his or her return.

What Situations does FMLA Leave Cover?

Some reasons for FMLA entitlement are:

  • Birth or placement of a child for adoption or foster care
  • A serious medical condition of the employee
  • To care for the employee’s spouse, son, daughter, or parent who has a serious health condition
  • Any qualifying exigency arising from the foreign deployment of the employee’s spouse, son, daughter, or parent with the Armed Forces, or to care for a service member with a serious injury or illness if the employee is the servicemember’s spouse, son, daughter, parent, or next of kin

Background on Tanner v. Stryker Corp Case

In Tanner v. Stryker Corp. of Michigan, No. 22-14188 (11th Cir.), June 20, 2024, the court addressed the question of when FMLA begins for a father when their child is born. An employee of the Stryker Corporation in Florida, Tanner, was having a child with his girlfriend. Prior to giving birth, Tanner’s girlfriend moved to Connecticut in order to have her child there.  Tanner intended to be in Connecticut during his FMLA leave and spent time planning and organizing to prepare for his move. While preparing for his move to Connecticut, Tanner took time off; however, he did not have sufficient time off to cover his time away from work, so he was charged with points under the company’s attendance policy.

Tanner advised the company of the initial due date, which was August 1, 2021. Upon being advised of the due date, Stryker Corporation informed Tanner that his days of FMLA leave would not count until after the child was born and provided Tanner with a notice that stated his FMLA and parental leave benefits would only apply once the baby arrived; therefore, if he was planning on taking time off prior to the birth he was required to use a sick or vacation day.

After receiving this notice, Tanner was then informed that the due date would likely be closer to August 12, 2021. Despite being notified that he would need to use accrued time off for any additional absences prior to the birth of the child, Tanner took one week off and then left for Connecticut on August 8, 2021. Tanner’s baby was then born on August 18, 2021.

Tanner did not have enough accrued time off to cover his absence during the time between taking off work to prepare for his move to Connecticut and the birth of his child; therefore, he accrued eight attendance points. The amount of attendance points rose to the level of termination under the company policy. When Tanner informed the company of the birth of his child, the company informed Tanner that he had been terminated pursuant to their attendance policy.

Court Rules Against Tanner’s FMLA Entitlement

Tanner sued the company and claimed that the employer’s actions violated his rights under the FMLA and retaliated against him for asking to use FMLA leave. Tanner appealed the decision of the lower court which granted summary judgment, and his case went to the 11th Circuit Court of Appeals.

The 11th Circuit Court of Appeals also rejected Tanner’s appeal and found that the employee’s right to leave only applies after the birth of the child and not before. In regard to the retaliation claim, Tanner argued against the implementation of the policy by alleging that he was not given any warning prior to the termination and that it was not clear whether the attendance policy applied to him. The court rejected these arguments, and the retaliation claim by stating that the company’s attendance policy provided a legitimate business reason for the termination.

What Can Employers Learn in Light of this Ruling?

This case shows how important it is for employers to ensure that they meet all their obligations under the law to provide proper notices in these types of situations. These notices are also evidence that the employer is willing to honor the employee’s request for leave and can be used to defend against interference claims. Further, employers should be very specific in the notices and should detail when the leave begins and what counts under the FMLA.

In these types of cases, where an employee requests time off prior to their child being born and their FMLA leave going into effect, an employer should advise the employee that the leave will not be covered and that they will be required to use accrued time off for any time off prior to FMLA leave going into effect.

Employers should also issue a new notice which reflects the change in dates each time that the dates of leave change or are modified. In order to ensure an employer is prepared for any challenges by employees regarding what is and is not protected under the FMLA, employers should keep up to date and specific records regarding each FMLA leave request.

FMLA Facts at a Glance

How Much Time is Provided for FMLA?

Employees who are eligible can take up to 12 weeks of FMLA leave in a 12-month period for a qualifying reason, such as the ones listed above. Alternatively, those who qualify for military caregiver leave are provided up to 26 workweeks of leave in a 12-month period.

This time provided by the Family and Medical Leave Act is unpaid. However, employees may use this time in conjunction with their standard PTO (i.e.. sick leave or vacation leave) provided by the company as outlined by their employer’s paid leave policy.

Who is Eligible for FMLA Entitlement?

Employees that have been at a company for at least 12 months and who have accrued at least 1,250 hours of service for the employer during the 12 months before leave begins. Additionally, the company or location at which they work must have at least 50 employees within 75 miles.

Employers that must provide FMLA leave include private sector employers who employ 50 personnel or more for at least 20 workweeks in a calendar year, public agencies such as Federal, State, and local government employers regardless of size, and educational agencies such as public-school boards, public and private primary and secondary schools at any size.

Under FMLA regulations, cited by the Department of Labor, an employee must give at least 30 days advance notice if it is possible and practical to do so. For certain FMLA qualifying reasons, an employer may require an employee to provide additional information and submit a medical certification issued by the employee’s health care provider. They must allow up to 15 calendar days to provide the needed information, unless it is not practical under the circumstances to do so despite the employee’s diligent, good-faith efforts, or unless the employer provides more than 15 calendar days to do so.

What is Considered an FMLA Violation?

Employers must be conscientious to maintain the same job conditions the employee left upon his or her return. Potential changes that could be considered violations of employee rights could be a change in the number of shifts assigned, moving an employee to a different location or shift, or denying a bonus, raise, or promotion for which they were qualified before their leave. Some of the more obvious violations could be threatening punishing, suspending, or firing an employee due to their FMLA request.

Writing up an employee for missing work when on FMLA leave, or assessing negative attendance points could also be considered a violation against an employee’s rights, and this is essentially the angle that the Plaintiff in the court case of Tanner v. Stryker Corp took. However, he was provided with ample notice and given a clear directive that his FMLA leave would begin upon the birth of his child and that any additional time off he took prior to that was subject to the company’s PTO policy.

Conclusion

Employers should also keep in mind that this case is very fact specific. If the facts were slightly different— for example if Tanner’s girlfriend was his wife and she had a serious health condition that arose from the pregnancy— Tanner would likely have been allowed to take that leave prior to the birth of his child to take care of his spouse. Employers need to make sure that they are handling each FMLA leave request on a case-by-case basis to ensure that they remain compliant under the law.