Employers generally assume, correctly, that an employee who fails to report for duty at the end of an FMLA leave with a specified end date can be terminated. But it is important not to send out that termination letter too quickly, because employees sometimes need more leave than originally anticipated. Federal regulations require employees to provide “reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable.” 29 C.F.R. § 825.311. This “reasonable notice” rule seems designed to benefit the employer. However, a federal district court in Virginia recently interpreted it to permit an employee who learned from her doctor on the very last day of her FMLA leave that she needed additional leave to wait several days after her leave ended to tell her employer she needed a brief extension. Because the employer fired the employee the day after her leave expired, before the end of the “reasonable notice” period, the court found an FMLA violation and awarded the employee liquidated damages and front pay totaling nearly $750,000. Perry v. Isle of Wight County, No. 2:15-cv-204 (E.D. Va. Aug. 10, 2017), appeal docketed, No. 17-2054 (4th Cir. Sept. 11, 2017).
Employers can take measures to avoid being caught by surprise when an employee who has not exhausted her available FMLA leave time needs to extend her leave. For example, employers should consider requiring periodic updates of the employee’s status and anticipated return date during the leave, particularly as the return-to-work date approaches. In addition, employers should review their FMLA forms and policies to be sure that employees are clearly informed of their duty to provide reasonable notice of any changed circumstances. Employers should also consider defining “reasonable notice” to mean two business days, rather than the four business days afforded by the employer in Perry. Finally, when an employee, such as the Perry plaintiff, has a doctor’s appointment scheduled for the last day of leave, consider requesting same-day notice of any need for additional leave, while bearing in mind that the law may afford the employee a grace period in which to provide such notice.