Under the Family and Medical Leave Act, employers are given the option of providing the required 12 weeks of job-protected leave on a calendar year, fixed year or rolling basis. Most employers choose the rolling method, because it prevents employees from "stacking" up to 24 weeks of consecutive leave at the end of one year and the beginning of the next. Last week, the Sixth Circuit Court of Appeals warned employers of their obligation to notify employees when this method of calculation is changed.

In Thom v. American Standard, Inc., the plaintiff was terminated after exceeding his maximum FMLA leave entitlement under the rolling method. He sued, claiming that the employer had failed to provide him with adequate notice of its amendment of its FMLA policy a few months earlier, changing eligibility from the previous calendar year basis. Under the previous calendar year method, the plaintiff would have been entitled to additional leave.

The Sixth Circuit agreed, affirming a grant of summary judgment for the plaintiff. The Department of Labor's FMLA regulations (29 C.F.R. § 825.127(d)(1)) require employers to notify employees of the change in eligibility calculations at least 60 days in advance. The Sixth Circuit went further, stating that the employer is obligated to provide written notice of such change.

The court doubled the original $200,000 verdict, concluding that the employer had terminated the plaintiff in bad faith. Among other things, the employer never notified the plaintiff that the termination decision was based on the new FMLA policy until after litigation had begun.

Employers should communicate any change in their FMLA policy in writing, and obtain documented confirmation that employees received the new changes.