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Can Your Employer Limit Your FMLA Leave?

by | Jul 14, 2022 | Age Discrimination, Employment Law, Family Medical Leave Claims, National Origin Discrimination |

While our employees’ rights lawyers ordinarily blog about legal decisions from around the country that affect the rights of employees under the Family and Medical Leave Act (“FMLA”), today I am going to address a recent summary judgment decision from the United States District Court for the Northern District of Ohio, Highman v. Plastic Process Equip., Inc., 2022 WL 5411951, in which we successfully argued that the employer had interfered with our client’s rights under the FMLA and worse, had done so without a good faith belief that it was following the law. While the decision was a win for our client, it is also a great example of how an employer can find itself liable for FMLA interference when it fails to take its employees or its legal obligations under the FMLA seriously.

John Highman was a parts puller at Plastic Process Equipment, (“PPE”) located in Macedonia. There were at least 50 employees at the PPE facility John worked at, so it was a covered employer under the FMLA. Despite this, PPE had no FMLA policy whatsoever and its employee handbook made no mention of the FMLA. As a result, John and other PPE employees had no idea that FMLA could be available to them. Instead, PPE operated under its own strict attendance policies and the whims of PPE’s owner, Ed Kuchar. So, right off the bat PPE was violating the “general notice” requirements of the FMLA listed in 29 C.F.R § 825.300 (a).

In 2017, John took vacation time to go to the Philippines to meet with Janina and then used additional vacation time in January and February of 2018 to return to the Philippines to marry Janina. About six weeks later, John learned that his new wife was pregnant.

Is there a specific way that I need to ask for FMLA leave in order to get it?

Best FMLA Lawyer Answer: The FMLA is very clear that employees do not need to use magic words to be entitled to leave. Instead, the law deems the employer to have knowledge that an employee may be seeking FMLA leave when they notify the employer that they need time off for an FMLA qualifying reason.

In June of 2018, John decided to ask Kuchar about arranging the month of November 2018 off for the birth. This notification put Kuchar and PPE on notice that John needed leave for an FMLA qualifying reason. Of course, John did not say “I need to take FMLA leave,” (because he did not know what the FMLA is).

Incredulously, Kuchar testified that John would have had a better shot to get FMLA leave if he had buttered him up by saying “pretty please.” Given that an employee does not even have to mention the FMLA, you can probably guess that the employer’s “pretty please” argument did not go over well with the Court.

What does my employer have to do when I request medical time off from work?

Best Medical Leave From Work Attorney Answer: The notice issue was key in John’s case, because his notification to Kuchar that he needed time off for the birth of his child triggered Kuchar and PPE’s legal obligation under the FMLA to notify John that he may be entitled to FMLA leave. As explained in 29 C.F.R § 825.300 (b), this notice of rights must be provided to the employee within five days of their providing notice:

When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.

So, did Kuchar provide this legally required notice to John? Or course not. Despite testifying that he understood that (1) PPE was covered by the FMLA and (2) that childbirth is an FMLA qualifying reason, Kuchar explained that he did not give notice because he did not believe John was married:

Q:   Did you tell him that it may be covered under the FMLA?

A:   No.

Q:   So you didn’t do what’s in the first sentence (of 825.300(b)), did you?

A:   No. Because I didn’t believe he was married.

Q:   Oh. Well, what does being married have to do with whether or not you are entitled to leave for the birth of a child? Do only married people have children?

A:   I can’t answer that.

Q:   Well, then explain to me what you just said.

A:   I said that I didn’t believe he was married. I wasn’t sure that he was having a baby.

Do I have to be married to be entitled to FMLA leave for the birth of my child?

Best Employees’ Rights Attorney Answer: Absolutely not. FMLA is not dependent on marital status. Employees are entitled to FMLA for the birth or adoption of a child regardless of whether the employee is married, single, separated, estranged or in any other type of living arrangement. Indeed, in Highman, it was irrelevant that the employee’s wife and new child were living separately in another country.

Kuchar did not seem to realize that (1) his beliefs about employees and their life circumstances are irrelevant to whether employees are entitled to exercise their rights and (2) that the purpose of the eligibility notice is to give the employee an opportunity to provide information and documentation supporting their need for leave. As 29 C.F.R. 825.302(c) explains,

In all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken.

Can I still take FMLA leave even if my attendance record is bad?

Best Employment Lawyer Answer: A qualifying employee is entitled to FMLA leave regardless of past attendance records, whether good or bad. It is important to remember that the FMLA does not allow employers to deduct already used paid time off (PTO) when providing the 12 weeks of FMLA leave.

Afterwards providing initial notice of his upcoming need for leave, John had some bad luck that impacted his attendance record at PPE. He suffered from several health issues that caused him to miss work for doctors’ appointments, including a scare that he was having a heart attack. John also had some car problems that popped up and made him late to work. Eventually, John was put on a final written warning for his attendance.

In September of 2018, John decided to firm up his childbirth plans by asking his direct supervisor about taking a month off during November of 2018 for the birth. Instead of providing John with notice of his rights under the FMLA, the supervisor told John that he did not know if taking that much time off was possible given his final written warning for attendance. John’s supervisor told him that he would need to ask Kuchar.

Pursuant to his supervisor’s instructions, John next went to speak with Kuchar. John and Kuchar both had different takes of what was said during that meeting. John testified that he asked for four weeks of leave and that Kuchar told him that because of his attendance and final warning, PPE could only allow him to take two weeks of “vacation.” Kuchar testified differently and claimed that John only asked for two weeks off, which is what PPE gave him.

Do I have a claim for FMLA interference if I only asked for a few weeks off because I did not know my rights to have a full 12 weeks?

Best Maternity Leave Rights Lawyer Answer: FMLA interference occurs when an employer acts to block or limit an employee’s ability to take legally entitled FLMA leave. (Best Law Read: What Is An FMLA Interference Claim?; What Is FMLA Interference?). An employer failing to provide an employee the required information regarding that employee’s FMLA rights can result in an FMLA interference claim.

PPE argued that the dispute between John and Kuchar about how much time off John asked for created a genuine issue of material fact that would require a jury to resolve at trial. But this argument was rejected by the Court. First, there was other evidence that Kuchar knew that John was seeking four weeks off:

  • There was the undisputed June of 2018 request for the month of November 2018 off;
  • Kuchar testified that John’s supervisor “forewarned me and said, I think [Highman] is going to come talk to you because he’s talking about taking four weeks unpaid leave;
  • Kuchar memorialized his conversation with John in a contemporaneously written “note to file” dated September 19, 2018 stating: “I said rumors have him going for one month which I said we couldn’t agree to especially with his poor attendance record.”

Second, and more importantly, however, the Court rejected PPE’s argument because it again failed to provide John with notice of his rights under the FMLA. This, the Court reasoned, prejudiced John because he did not know that he was allowed to take the four weeks of leave he wanted:

Even assuming, which is not proven from this record, that in September 2018 when Highman met with Kuchar, Highman did only ask for two weeks, he did so because he did not know he was entitled to more time and therefore could insist on it. Defendants argue that there is a factual dispute as to how much time Highman requested—which precludes summary judgment on his claim. But, in September, defendants already knew (and do not now dispute) that, on two earlier occasions, Highman had already indicated that he wanted four weeks off to travel to the Philippines for the birth of his child. But, because of his previous attendance problems, defendants only allowed him two weeks off—violating the FMLA both as to the time it permits and as to Highman’s notice rights, which Kuchar himself understood … Highman settled for the two weeks because he did not know he was entitled to more under the FMLA; and he did not know that because defendants failed in their notice responsibilities. Highman was prejudiced by this lack of notice. (Emphasis added).

What is FMLA retaliation and how do I prove it?

Best Wrongful Termination Lawyer Answer: The FMLA prohibits an employer from taking an adverse employment action against an employee for using FMLA leave, which would include wrongful termination, demotion, pay cut, and other acts that would discourage that or any other employee from using FMLA leave. (Best Law Read: Firing Employee On FMLA Following Miscarriage Is Evil;  Why Retaliation Is The Easiest Employment ClaimFMLA Retaliation Tips – Call The Right Attorney; What Is An Adverse Employment Action?).

When November finally came around, John travelled to the Philippines with an expected return to work date on November 19, 2018. While this return date had been unilaterally imposed on John by PPE and Kuchar, he initially intended to return to work by this date. But, approximately a week into his visit, John’s newborn became sick and developed rashes all over her body. Rather than abandoning his newborn, John sent his supervisor a Facebook message that his child was ill and that he would not be returning until he was certain she was okay. Notably, this notification again put PPE on notice that John was seeking time off for another FMLA qualifying reason. Instead, John’s supervisor ignored him and terminated his employment when he did not return to work on November 19. John was not aware of this until he returned to Ohio on December 3, 2018 and notified his supervisor through Facebook that he would be back at work the next day. In response to John’s return, his supervisor responded, “your job was not held.”

PPE again sought to avoid liability on summary judgment, arguing that John’s claim for FMLA interference should be dismissed because, even if he was entitled to FMLA leave between November 19 and December 3, his termination was for a legitimate reason unrelated to PPE’s failure to provide him with leave because John failed to comply with PPE’s call-off policy, which requires employees to call in each day they are going to be absent. However, there several problems with this argument, both factually and legally. Factually, the argument was nothing more than a lie. Indeed, PPE had made clear to Ohio unemployment that John would have been fired no matter what, stating in paperwork it submitted that “a call off request by Highman would not have been granted due to his poor attendance record” and that “he would not have been granted an extension due to his poor attendance record.”

More significantly, however, was that PPE’s “call off policy” argument was legally deficient because it ignored the consequences of its notice violations. As the Court explained,

Defendants cite the law correctly. But they are ignoring facts and principles, discussed more fully below, that render their argument ineffective. While it is true that Highman did not contact defendants after his two weeks of unpaid “vacation” were complete to advise them that he was not yet returning to work—which, under the Company Policy, would otherwise be a legitimate reason to terminate his employment—had Highman been informed of his right to FMLA leave and granted the four weeks of FMLA leave that he had originally indicated he wanted (first by telling Miller and then also mentioning it to Kuchar) and to which he was entitled, the requirement to contact anyone at PPE would not have become effective until December 3, 2018. In fact, Highman did contact Miller on that date and was prepared to return to work but for being advised that he had already been fired. Therefore, as Highman argues, defendants’ failing to inform him of his FMLA rights and denial of the FMLA leave to which he was entitled was the very act that caused Highman harm—but for not being informed that he was entitled to the four weeks he told Miller, his supervisor, he wanted for the birth of his child, Highman would not have been guilty of violating an attendance policy since he was entitled to take that much time—and more—in FMLA leave, and there would have been no need to report to Miller or PPE in mid-November and/or to “extend” his “vacation.”

*     *     *

Defendants’ entire reliance upon the undisputed facts that Highman neither returned to work as expected on November 19, 2018 (and as he admittedly had indicated he would when he left (see Doc. No. 55-1 at 69)), nor contacted anyone at PPE after November 15, 2018 to request additional leave beyond the original two weeks, is misplaced. The arbitrary two-week deadline imposed by defendants was not justifiable under the requirements placed on employers by the FMLA. Highman was entitled to more leave than he was given but did not know that because he was denied the notice of his rights to which he was also entitled and which would have put him in a position to understand and insist upon those rights. Admittedly, it would be different if Highman indeed only wanted two weeks leave (even FMLA leave) and then failed to either return or to request an extension in the form required by his employer when his daughter unexpectedly became ill. But Highman requested four weeks and only agreed to a two-week leave because he felt pressured by his employer and neither knew he could insist on more nor that his personal attendance record was irrelevant for FMLA purposes. Defendants will not be permitted to benefit from the unlawful situation they created by failing to inform Highman of his FMLA rights and, not surprisingly, they point to no case law that says they should. In fact, the very case law defendants cite supports a conclusion that their termination of Highman’s employment was “causally related to the [defendants’] failure to comply with FMLA notice requirements, and therefore constituted FMLA interference.” (Emphasis added).

What damages can I get for an FMLA violation?

Best FMLA Violation Attorney Answer: When an employee wins a claim for FMLA violations, two types of damages are available. First, is lost pay. Specifically, 29 U.S.C. §2617(1)(A) holds employers liable for “any wages, salary, employment benefits, or other compensation” lost by the employee as caused by the retaliation. Alternatively, if an employee has not lost wages or benefits, the employer can still be held liable for other monetary damages, including the costs of  paying aa caretaker for a sick family member or newborn child. Second, as regular readers of our blog may know, the FMLA requires employers to pay not just lost wages, but also double damages, or “liquidated” damages unless the employer can prove that it acted in good faith. (Best Law Read: Are Liquated Damages Mandatory In FMLA Retaliation Cases?). Good faith means that, not withstanding the violation, the employer thought it was following the law or at least made an effort to do so.

You will not be surprised to learn that here, the Court easily found that PPE and Kuchar would never be able to meet their burden:

In opposition to Highman’s request in this regard, defendants argue that the record establishes that they acted in good faith by terminating Highman for violations of PPE’s attendance policy, unrelated to any FMLA-protected leave. (Doc. No. 58 at 12.) But the question is not whether they thought they had a good reason for terminating Highman’s employment. Rather, “[t]o establish good faith under the FMLA, a defendant must show that ‘it honestly intended to ascertain the dictates of the FMLA and to act in conformance with it.’ “ Thom, 666 F.3d at 977 (quoting Hite v. Vermeer Mfg. Co., 446 F.3d 858, 868 (8th Cir. 2006)).

On this record, defendants cannot establish good faith under the Thom standard. The record shows that defendants admit all of the following:

    • they never researched the FMLA or took steps to ensure compliance despite being aware of their status as an FMLA-covered employer for over a decade;
    • they failed to comply with even the bare minimum general notice requirements of the FMLA;
    • they knowingly failed to advise Highman of his FMLA rights or to grant him the leave he required because Kuchar did “not believe” Highman was married;
    • they did not inform Highman of his FMLA rights because he did not use the “magic words” — FMLA (Id. at 28, 45–46); and,
    • they suggested that Highman should have “soften[ed] up” Kuchar and should have said “pretty please” to be granted FMLA leave.

The Court concludes that, for all the reasons set forth above and on this record, Highman is entitled to the determination that defendants did not act in good faith. (Citation to the record omitted).

What should I do if I was fired during my paternity or maternity leave?

Best Wrongful Firing Attorney Answer: FMLA cases are very complex and you should consult an experienced employment law attorney. Because we know that many clients are not able to afford the costs of litigation upfront, we take on more cases on a contingency fee basis than most firms. Contingency fee agreements mean that the client need not pay any fee for legal services unless and until our employment attorneys recover money and/or results on your Family and Medical Leave Act claim. (Read: What is the Spitz No Fee Guarantee?).

If you feel that you are being denied leave rights under the Family and Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


This employment law website is an advertisement. The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do it tell my job that I need medical leave under the FMLA?”, “what should I do when my company refuses to let me take me FMLA leave after the birth of my child?”, “can my employer block paternity leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to write me up for using FMLA leave?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, LLC, Brian Spitz, or any individual attorney.

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