Legal Question in Medical Leave in Maryland

Re: Retroactive FMLA

You are correct about Ragsdale - an employee is not entitled to more than 12 weeks in the given 12 month period. However, it's a bit more complicated than that. If the employee relied, to his or her detriment, on the employer's "granting" extra leave by not counting it, then the employee might have a "detrimental reliance" claim whereby he/she would basically be allowed to use extra leave. For example, say that the employee had FMLA-eligible leave in January and Feb for 240 hours, but was not notified it counted as FMLA. Then, in a few months, the employee is diagnosed with a disease requiring surgery and daily treatment and plans on 2 hours off leave per day for several weeks, plus 4 weeks off for surgery and 4 weeks off for recuperation. At the end of the time, the employer then tries to say, oops, sorry, we forgot to count the Jan and Feb, time, so you exceeded your 480 hours, so we are firing you. As you could guess, the DOL and most courts would not support the employer because the employee relied on the employer, to his/her detriment, in planning the surgery and leave thinking he/she had enough FMLA protection. Had he known differently, he could have planned differently.

The way to avoid this is to notify the employees that the FMLA-eligible leave is now being counted, but if anyone objects, review his/her situation in particular to see if there is something unfair as in the example above. If so, make the necessary adjustments. (But make sure it is based on valid reasons so others can't say it is discriminatory (age, sex, religion, etc.) to give that employee more FMLA protection but not the others.)

Having said all that, you can see it is complicated. Your boss has a point that it is easier to err on the side of caution and just start doing things correctly when the new 12 month period rolls around.

If you are not doing this basic thing correctly, there may be other things you are doing wrong too. You need to have a posting, most employers have a policy which is almost mandatory, there are many notices that need to go out to employees, you must pick the type of 12-month period and stick with it, etc. All the info including the poster and regulations can be found at dol.gov under FMLA.

If your company needs to hire an attorney to help with FMLA and/or employment matters, feel free to email directly to me.

Jeff Sheldon

Jeffrey L. Sheldon

The Sheldon Law Firm

CAVEAT: This is only general advice based on limited facts and knowledge of the situation. It thus can not be relied upon as legal advice nor is the author responsible or liable for any actions by the parties involved in the matter.