September 09, 2024
FMLA Faux Pas Continue to Plague Employers
In the last few months, we have seen several cases that address how employers may violate the federal Family and Medical Leave Act. Here is one example.
September 9th – The issue in this case was whether an employer who discourages but does not deny an employee’s request for FMLA leave “interfere[s] with” the employee’s rights in violation of the FMLA. The 2nd U.S. Circuit Court of Appeals ruled, “Yes.” In this case, an employee was working remotely to take care of a child with a serious medical condition. The employer then prohibited her from working remotely for more than one day per week and required her to use intermittent leave under the Family and Medical Leave Act (FMLA) for any additional time away from the office. The court explained, referencing language from the U.S. Department of Labor, “an employee is not required to demonstrate an actual denial of benefits to establish a violation…interference or restraint alone, which includes discouragement, is enough to establish such a violation.” (emphasis added).
Lessons Learned.
- An employer may violate the FMLA by interfering with or retaliating against an employee using or trying to use FMLA leave. When an employee inquires about taking time off for FMLA-qualifying reasons, avoid negative or adverse comments that might sound discouraging or disapproving. Managers might be trained to refer the employee to HR for more information.
- Proceed with caution when taking what may appear to be a retaliatory action against an employee who is using, has asked about using, or recently used FMLA leave. In the case above, the employee did not allege FMLA retaliation when the employer required her to come into the office after she started using FMLA leave. If she had, that may have been a successful claim as well.
If you missed October’s monthly webcast, “FMLA Update” you can still access the entire recording, receive a copy of the handout, and earn 1.25 credits pre-approved by HRCI and SHRM. $25 pp. Click here for the agenda and to register.