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More FMLA Guidance

First up this week, the 6th Circuit held that
an employer does not need to allow an employee to rescind her resignation as
part of her FMLA rights
.  In the case, an
employee went on FMLA medical leave following hospitalization.  When she returned to work, she immediately
submitted her resignation, which the employer accepted.  Three days later she attempted to rescind her
resignation, and the employer refused to re-hire her.  She claimed that her employer was “on notice”
that she was requesting further FMLA leave. 
Specifically, the employee had a history of psychotic breaks that
required the use of FMLA leave.  Here,
when she returned to work following her latest incident (for which she supplied
all proper FMLA documentation) she was cleared to resume normal working duties,
and began doing so until she abruptly quit.

The court examined whether the employer was required to
make a further inquiry into whether the employee was requesting additional FMLA
leave- basically whether her resignation was valid or merely an FMLA request in
different terms.  The court noted that
the FMLA does not require that an employer grant leave in the absence of notice
or a valid request.  The court
stated that “[t]he critical test for substantively-sufficient notice is whether
the information that the employee conveyed to the employer was reasonably
adequate to apprise the employer of the employee’s request to take leave for a
serious health condition that rendered him unable to perform his job.”  Basically, the employee needs to give the
employer enough information so that the employer knows FMLA leave might be
required.

Here, the court found the employee had not provided sufficient
notice, and thus the employer’s duty to inquire further into FMLA leave was
never triggered.  Although the employee
argued that when she told her employer she was not returning to work it was on
notice, the court found that the evidence suggested that she had clearly
communicated her intent to quit and gave no indication of her desire to take
more FMLA leave.  Finally, once she quit,
she was no longer an employee and was thus not covered by the FMLA.  In fact, the employee had inquired during her
resignation during a prior meeting about what type of leave she needed, and she
had responded only that she meant to permanently resign.

Next, in Chicago a 10-year strike finally ended last week.  Employees of the Congress Plaza Hotel, who
had begun striking in 2003 over wage cut issues, finally ended their dispute
“unconditionally.”  If the employees now
return to work, they will do so under a 2002 contract that pays wages the union
argues are half of the standard rate in the city.  Regardless, the strike was one of the longest
in American history.