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News & Press: HR

FMLA: It Won't Go Away

Monday, November 5, 2018   (0 Comments)
Posted by: Alyce Ryan
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Written by: Christine V. Walters, JD, MAS, SHRM-SCP, SPHR,  FiveL Company 

Administering leave under the Family and Medical Leave Act (FMLA) can be challenging. But, it's not going anywhere so you may as well take the time and get it right the first time. Here are just a couple of "Oops" recently alleged.

·     In a case from July, an employer gives its employee FMLA intermittent leave for two years for a variety of chronic health conditions. In the third year, the employer declines to recertify the leave as intermittent and puts the employee out on continuous FMLA leave. The employee alleges a Trifecta violation: FMLA interference, FMLA retaliation, and discrimination under the Americans with Disabilities Act (ADA). The judge lets all three claims proceed to trial. If nothing had significantly changed - doctor's limitations and the job were about the same - a jury could infer a discriminatory motive when it denied the leave in year three.

·     In another case earlier this year, an employer surveilled an employee while he was out on FMLA leave. Reportedly, because they doubted the validity of his need for leave. When the employee returned to work, he was written up and denied a promotion for which he was a top candidate. Regarding the claim of FMLA interference, the judge found, "There is a genuine issue of material fact as to whether the Defendants' invasive surveillance of Walker's private activities would 'chill' his use of FMLA, and whether they were negative consequences of Walker taking FMLA leave." As to the retaliation claim and the employer's defenses, the judge noted, "All of these explanations are fact intensive, and depend in large part on whether Defendants' reasons and motivations for their actions were reasonable and justified, or whether they were pretextual. This is particularly true regarding the surveillance of Walker, which is an extraordinary response to FMLA concerns" The judge denied the employer's request for summary judgement and submitted the claims to a jury.


Lessons learned? Timing might not be everything, but it sure can give the appearance of bad acts or motives. Look at your past practice. Generate options. Let business needs drive your employment decisions.

Resources: Did you know November is National Family Caregivers' Month? Click here for more information and FREE webinars & toolkits.