The Family & Medical Leave Act Restricts Employers Who Discipline Employees For Absenteeism

Co-written by Susan Denious

The 1993 Family and Medical Leave Act provides employees with up to 12 weeks of unpaid leave each year to cope with their own or their family's serious illness. Application of its terms has proven difficult for employers. The Ninth Circuit Court of Appeals recently added a layer of complexity; the court made it clear that employers proceed at their own risk when they discipline employees who have taken FMLA leave.

The Ninth Circuit Imposes New Restrictions And Obligations Upon Employers

In Bachelder v. America West Airlines, Inc., the appellate court reviewed the dismissal of an employee who took two FMLA-covered medical leaves of absence, in 1994 and mid-1995; in January 1996, the employee was warned about her poor attendance but, nonetheless, was absent for three weeks in February 1996. The employer concluded the February 1996 absences were not protected by the FMLA since the employee had exhausted available FMLA leave. The employee sued, contending that under a different method of calculating FMLA eligibility, her February absences were covered by the statute and could not be the basis for termination.

The Ninth Circuit reasoned that allowing an employer to attach negative consequences to the exercise of FMLA leave "tends to chill" an employee's willingness to use leave. Although not expressly specified in the statute, the Ninth Circuit held that employers are prohibited from considering FMLA leave as a factor in employment decisions.

The court then considered the four different methods of calculating the "12-month period" during which an employee is entitled to take 12 weeks of leave; Congress provided employers with a choice among these methods, the court observed. It acknowledged that FMLA regulations do not expressly require employers to inform employees of their selection; nonetheless, the court found that employers must announce their initial choice of a 12-month calculation method before applying it to employees.

Under The New Rules Announced By The Court, The Employer Was Held Liable For Violating The FMLA

The Ninth Circuit's application of these new principles worked to the Batchelder employer's distinct disadvantage. Employers may calculate the 12-month period during which 12 weeks of leave is due by using either (1)a calendar year, (2) a fixed 12-month leave year, (3) a 12-month period measured forward from the employee's first FMLA leave, or (4) a rolling 12-month period measured backward...