FMLA calculation may be missing from employers’ policies

Most Wisconsin employees have a certain amount of FMLA leave that they may use in a 12-month period. However, there have been cases where the way that employers calculated remaining FMLA leave was not specified in the policy. The Illinois Department of Corrections, for example, fired an employee after claiming that he had too many unexcused absences even though he asked that those absences count as FMLA leave.

The employee reportedly was taking time off work to care for an ill family member as he had done in the past. After he was terminated, he filed a lawsuit against IDC for FMLA interference, claiming that he was never told how his FMLA leave would be calculated. Further, he still had enough FMLA leave to cover the absences that IDC claimed were unexcused. IDC’s motion to throw out the lawsuit was denied as there was no evidence stating when the 12-month period started. The case was sent to trial.

The lawsuit demonstrates just how important it is for employers to clearly define how FMLA leave is calculated and that employees should be provided with written updates on the amount of leave they have left in a 12-month period. Employees should also ensure that the policy clearly outlines how FMLA leave will be calculated.

Employees have the right to take time away from work should they welcome a new member into their family or need to care for a sick parent, child or spouse under the Family and Medical Leave Act. If an employer prevents an eligible employee from taking their FMLA leave or terminates them for taking leave, an attorney may help the employee seek compensation for the losses that have been incurred.


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