Who Makes the Final Roster? The Family Medical Leave Act applies to employers with 50 or more employees.  But determining who counts as an employee isn’t as easy as it sounds.  The Michigan City of Gibraltar found this out the hard way when it failed to classify its volunteer firefighters as employees for FMLA calculation purposes. The City claimed that the volunteers shouldn’t count towards the 50 employee threshold because the volunteers don’t receive regular pay and benefits.  The Sixth Circuit Court of Appeals disagreed and held that the volunteer firefighters are employees for FMLA purposes because they are paid reasonable expenses and a nominal fee for their time spent fighting fires.  The ruling broadens the definition of who can be considered an employee for FMLA purposes and means that employers should reexamine their workforce to see if the FMLA applies. 

A Good Offense is Still the Best Defense. A doctor placed a Kentucky assembly worker on light duty restrictions a week before the employee was scheduled to have surgery.  The employee stayed home for several days because the company could not accommodate the employee’s light duty restrictions.  The company fired the employee when he failed to follow the call-in requirements of the company’s attendance policy.  The employee later sued the company for violating the FMLA.  But the Sixth Circuit Court dismissed the employee’s lawsuit because FMLA leave can be delayed or denied when an employee fails to comply with the employer’s usual notice requirements and no circumstances justify the employee’s failure to comply.  This ruling goes to show that a consistently enforced policy can often serve as the best defense to an FMLA claim. 

Upon Further Review. The FMLA can help employees deal with family and personal issues.  It can also be subject to abuse. But just how far must an employer go to prove the FMLA abuse? An Illinois federal court recently held that a company only needs an “honest suspicion” of FMLA abuse to terminate or discipline, even if the facts later reveal that the employee was telling the truth. In this case, a company granted an employee one day of leave to take his father to the doctor, but was suspicious of the requested leave.  Before the day of the leave, the company investigated, only to find that no appointment had been scheduled.  The company fired the employee because they thought he was lying about the doctor’s appointment. The employee ultimately sued the employer for violating the FMLA.The employee claimed that his father actually had a doctor’s appointment that day (although it was scheduled after the employer had confronted the employee).  The court dismissed the case before trial because the evidence at the time of the termination was enough for the company to honestly believe the employee was abusing his FMLA leave.