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by M. McClure on Sep 5, 2009 at 12:11 PM
Filed in ADA | FMLA

Exception to company policyIn HR circles, we joke that no good deed goes unpunished.  A well-intended exception to a company policy can turn into Exhibit A of a lawsuit.  For that reason, employment lawyers generally preach "no exceptions."  But exceptions that are grounded in good business judgment can provide management flexibility, create employee goodwill, and help to make your company an employer of choice.

In Hearst v. Progressive Foam Technologies, an Arkansas employer allowed an employee to take FMLA-protected time away from work before the employee was technically eligible for the leave.  The employee worked for Progressive Foam for nine months before he was injured off the job.  The FMLA requires that an employee work a full year before he or she is eligible for leave.  Here, the employee requested a month of FMLA leave, and Progressive Foam allowed it.

The employee then extended the leave to undergo surgery, stretching the leave into four months.  After the first twelve weeks passed, Progressive Foam informed the employee that his FMLA leave had expired, but agreed to extend the leave 30 more days based on his doctor's statement.  The employee then notified Progressive Foam that he would need another surgery and another month to recover, and Progressive Foam fired him.  

The employee filed an FMLA claim, arguing that because he did not work for Progressive Foam for a year when he initially requested leave, he was ineligible under the FMLA and that none of the time off before his one-year anniversary should be counted.  The court disagreed and found that "equity trumped" the employee's argument.  Although FMLA provides a minimum twelve-month work requirement, employers are free to lower the standard if they wish.  Here, Progressive Foam not only allowed the employee to take FMLA leave before he worked twelve months, it also allowed him four weeks of extra time. 

Bottom Line:  For making an employee-friendly exception, Progressive Foam found itself in litigation.  Still, I think Progressive Foam made the right decision.  Allowing an employee to take FMLA-protected leave before he or she is technically qualified creates goodwill with your employee base, may help you comply with the requirements of the Americans with Disabilities Act, and is sometimes just the right thing to do.  Yes, often good deeds are punished, but Progressive Foam, like other employers, may have reasoned that a little flexibility grounded in good business judgment can improve employee retention and productivity.  So, go ahead and do the right thing.     

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