sick leave

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The City of Hot Springs, Arkansas, found itself in hot water after not rehiring employee Wayne Jackson following his leave under the Family and Medical Leave Act (FMLA). Jackson had surgery and went on leave in January 2010. After using his 9 weeks of sick leave, he took 12 weeks FMLA leave and then requested 30 days of additional leave under the City’s leave without pay policy (provided up to 60 days of leave). The City granted the request, but when Jackson was unable to return to work after 30 days, it terminated him. Jackson was released to return to work 5 weeks later and sought reemployment in his former position, which was still open. The supervisor required Jackson to apply for his former job. Even though Jackson was identified as the most qualified candidate by a three-person interview panel, the supervisor did not hire Jackson and left the job unfilled. When the position was reposted 3 months later, Jackson (who had applied again) was not interviewed and the City hired a candidate with less experience than Jackson on the welding and fabrication machines used for the position.

Jackson sued for retaliation under the FMLA. He won at trial ($112,000 in lost wages, plus liquidated damages, attorneys’ fees and costs), and the City appealed. On May 12, 2014, the federal 8th Circuit Court of Appeals upheld the jury verdict on Jackson’s FMLA claim.

Although this decision is not binding precedent in Florida, the lessons learned from this case do apply in Florida and are important reminders for every employer:

  1. Send the FMLA Notice of Eligibility and Request for Medical Certificate within five (5) business days of when you receive information that an employee is or will be absent for a potentially FMLA-qualifying condition, or from when the employee requests leave. Although the 8th Circuit’s opinion does not directly discuss this issue, it appears that FMLA was not addressed until after Jackson used all his sick leave.
  2. Require employees to use accrued paid leave time concurrently with their FMLA leave. Otherwise, employees can use all their paid leave and then take FMLA leave (or vice-versa), potentially resulting in a much longer time away from work. This is what happened to the City of Hot Springs – Jackson used 9 weeks of sick leave and then took FMLA leave.
  3. If an employee is unable to return to work at the end of the 12 weeks and needs more leave because of his own health condition, you must evaluate whether the employee is disabled and whether additional leave would be a reasonable accommodation under the Americans With Disabilities Act (ADA). This requires you to engage in the interactive process with the employee. I know what you are thinking … how much more leave do I have to give the employee? Unfortunately, there are no hard and fast rules. I can tell you that 1-2 weeks will most likely always be reasonable and that indefinite leave is always unreasonable. For everything else, you must evaluate on a case-by-case basis.
  4. If an employee is terminated because he is unable to return to work at the end of FMLA and any extended ADA leave and the employee later reapplies for his old job and is evaluated to be the most qualified candidate, HIRE HIM! It will save you time and money down the road.