A new employee must be employed one year before she is eligible for leave under the Family and Medical Leave Act (FMLA). But what if she''s on leave at her one-year anniversary? What if she''s absent without authorization?
She''s only worked here 11-and-a-half months!
Kimberly Babcock began working for BellSouth on June 1, 1999, as an outside sales representative selling yellow pages advertisements. In April 2000, she began experiencing various health problems. On May 22, Babcock''s physician recommended that she take six weeks of leave from work. The physician submitted a certified form to BellSouth on May 30 stating that he had diagnosed Babcock with depression, irritable bowel syndrome, and headaches and that she would be able to return to work in six weeks.
BellSouth determined that based on its evaluation of the information from Babcock''s physician, it could authorize short-term disability leave only through May 27. Therefore, on June 7, it sent a letter to Babcock stating that her absences after May 27 were unexcused and that if she didn''t return to work by June 9, she would be terminated. On June 9, Babcock asked for additional leave time, which BellSouth refused. BellSouth terminated her employment on June 14 for "misconduct consisting of unexcused absence."
Babcock sued BellSouth under the FMLA. The jury returned a verdict in her favor and awarded her more than $91,000 in damages. The Fourth Circuit agreed that Babcock''s discharge violated the FMLA.
She''s not eligible for FMLA! No, wait - now she is.
The FMLA guarantees an "eligible employee" 12 weeks of leave each year because of a serious health condition that makes the employee unable to perform the functions of his position. There was no dispute that Babcock suffered from a serious health condition that left her unable to perform her duties and that BellSouth terminated her employment because she took time off from work on account of her health condition. The case turned on whether she was an eligible employee.
The FMLA defines an eligible employee as an employee who has been employed for 12 months and has worked at least 1,250 hours within the previous 12-month period. Significantly, the determination of whether an employee has been employed for at least 12 months must be made as of the date the leave begins.
BellSouth argued that Babcock wasn''t an eligible employee because her leave began on about May 19, before she had been employed for 12 months, and she never returned. Unfortunately for BellSouth, however, it had terminated her leave on May 27 but hadn''t terminated her employment until the second week of June.
Therefore, from May 27 until June 9 when Babcock asked for more leave, she was an employee on unexcused absence. She wasn''t on leave. When she requested additional unpaid medical leave on June 9 after her one-year anniversary, she was, according to the court, entitled to FMLA leave.
The court concluded, "Through the FMLA, Congress gave Babcock certain protections once she passed the one-year mark at BellSouth. Having allowed Babcock to remain employed for more than one year, and having cut off her short-term disability leave, BellSouth cannot now avoid its responsibilities under the statue." Kimberly Babcock v. BellSouth Advertising and Publishing Corp., U.S. Court of Appeals for the 4th Cir., 2003.
Bottom line
This case illustrates the extreme importance of timing when dealing with FMLA issues. The court acknowledges in its opinion that if BellSouth had terminated Babcock before her one-year anniversary date, she wouldn''t be able to pursue an FMLA claim. But once the company allowed her to remain employed for more than one year, it couldn''t avoid its responsibilities under the statute.
Copyright © 2004 M. Lee Smith Publishers LLC. This article is an excerpt from Ohio Employment Law Letter. OHIO EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Ohio employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.