Lack of Clarity Doesn't Entitle Worker to Extra Leave

September 7, 2001 ( -- An employer's failure to clarify that short-term disability leave counts under the Family and Medical Leave Act (FMLA) does not entitle an employee to a fresh 12 weeks of leave under the act, a federal judge ruled.

In his Thursday decision, US District Judge John G. Koeltl of the Southern District of New York, said Congress did not intend to allow an employee to take three months of unpaid leave on top of six months on disability.

The case, Fulham v. HSBC Bank USA, involved a veteran employee who was forced to take 26 weeks of short-term disability leave after his son was paralyzed in an automobile accident.

Case Background

Kevin Fulham’s employer, Marine Midland Bank, did not tell Fulham that the short-term leave he took from August 1997 to February 1998 counted toward the 12 weeks he was entitled to stay away from work under the FMLA.

A month before his scheduled return to work, Fulham was told by a company employee that he might qualify for unpaid family leave of up to 13 weeks under the company’s employee benefits program and remain an active employee. He could also leave the company and accept long-term disability benefits.

In February 1998, Fulham asked to be placed on unpaid leave and also submitted an application for long-term disability. Although he was initially placed on unpaid leave, Fulham was later informed that he was ineligible for leave under the act because he had not worked 1,250 hours for the company in the preceding 12 months.

Fulham’s lawsuit charged that he was entitled to 12 weeks off and that his company’s failure to advise him of his ineligibility for leave under the act ran contrary to the Department of Labor’s regulations on notice.

– Fred Schneyer