Under the FMLA, there are four methods which an employer can use to determine whether an employee is eligible for 12 weeks leave in a 12 month period. Once the determination is made, it is critical that employees be informed of the chosen method. In Thom v. American Standard, the 6th Circuit Court of Appeals awarded liquidated damages in a case involving the discharge of an employee for unexcused absences where the method of determination was not communicated to the employee.
At issue was whether the company used a "rolling" method or a calendar method. The court found that at no time did the company advise the employee during the FMLA process that his leave time would be governed by the rolling method. The court noted that the first time Thom had actual notice of the use by the company of the "rolling" method was when the company's lawyers raised it as a defense to his lawsuit.
Thom serves as reminder that an employer must be able to document the communication of it choice of method to determine eligibility to its employees for FMLA leave. Certainly, any employee discussing use of FMLA leave should be notified in writing of the method, and the employer should obtain a written acknowledgment from the employee of notification. Ben Franklin was right--a ounce of prevention is worth a pound of cure.