July 16 Tip of the Week
When Does FMLA Entitlement Begin?
A recent court decision Tanner v. Stryker Corp. of Michigan, No. 22-14188 (11th Cir.), June 20,2024 (available at this link: https://media.ca11.uscourts.gov/opinions/pub/files/202214188.pdf) addressed the question of when a father’s right to Family and Medical Leave for the birth of a child begins. The facts of this case are somewhat distinct. The father, an employee of Stryker Corporation, based in Tampa, Florida, was the father of a child with his girlfriend. Shortly before the birth of the child, Tanner’s girlfriend relocated to Connecticut so that the child would be born there. Tanner planned to take his FMLA leave in Connecticut and engaged in some preliminary planning and packing in preparation for his relocation to Connecticut for the birth of the child. Unfortunately for Tanner, he did not have sufficient paid time off to cover his absences as he awaited the birth of his child and he was charged with “points” under the company’s attendance policy.
The initial due date of the child was August 1, 2021. Upon learning of the due date, Tanner contacted his employer and submitted a request for paternity leave beginning July 26, 2021, indicating that the due date was the last week of July/first week of August. At that time, Tanner was told that his FMLA leave would not begin until the child was born – he received a notice that stated “FMLA and parental leave benefits ‘apply once the baby arrives. Therefore, if you plan on leaving early, you are required to just use a sick or vacation day.’” Tanner then learned that, contrary to what he initially thought, the due date would be closer to August 12, 2021. Despite the uncertainty surrounding the due date and the information that he would need to use existing PTO days to cover any absences before the birth, Tanner took one week off of work before leaving for Connecticut on August 8. Once he arrived in Connecticut, the due date was once again adjusted to August 18th. During the time between his taking off work to prepare for his temporary relocation and the actual birth of his child, Tanner missed a number of days of work and received 8 occurrence points under the attendance policy because he did not have enough paid time off to cover his absences.
Under the company’s attendance policy, an employee may accrue only so many attendance points before they are subject to termination. Tanner accrued the requisite number of points to warrant termination prior to the actual delivery date of his child. Therefore, when he notified his employer of the birth of his child, the employer congratulated him and then terminated him under the attendance policy. Tanner sued, claiming that the employer acted in violation of his rights under the FMLA and retaliated against him for seeking to use FMLA leave. The lower court granted summary judgment to the employer and Tanner appealed.
In rejecting Tanner’s appeal, the 11th Circuit Court of Appeals found that the right to FMLA leave only applies after the birth of a child and not before. The court also rejected Tanner’s retaliation claim, stating that the employer’s attendance policy provided a legitimate business reason for the termination. Although Tanner challenged the employer’s implementation of the attendance policy, claiming the he was not given a warning prior to his termination and alleging that it was not clear whether the policy applied to him, the court soundly rejected his arguments and found for the employer in this case.
What does this mean for employers? Several lessons can be taken from this situation. First, when dealing with an employee’s request for FMLA leave, it is important for employers to fulfill all of their notice requirements under the law. This will demonstrate that the employer is willing to honor the employee’s request to use such leave and can negate any claim of interference. Second, when meeting those notice requirements, employers must be very clear on when the leave will begin and what counts under the FMLA law. Should an employee request leave before the FMLA leave begins (i.e., before the birth of the child), the employer should notify them that such leave will not be covered and advise that the employee needs to cover that leave with their own paid time off banks. Finally, if the dates of the leave change or need to be adjusted, the employer should issue a new notice to the employee showing the change in the dates. By keeping the records specific and up to date, an employer will create the necessary documentation to withstand any challenge by an employee regarding what counts as job protected FMLA leave and what does not.
Although Tanner’s case dealt with some very specific facts, it is evidence that the management and implementation of FMLA leave can be complicated. In fact, had Tanner been needed in Connecticut to assist a family member with a serious health condition, which could include pregnancy complications, the outcome may have been very different. With unlimited on-demand access to attorneys, myHRcounsel clients get can help you with these complicated leave questions and assist you in ensuring that you are protecting your rights and the employee’s rights under the Family and Medical Leave Act.