Employers: What to do before and after FMLA leave

by on January 15, 2010 · 0 Comment POSTED IN: HR Info Center

FMLA leave: Overcoming three common employer mistakes

Tips to help employers avoid FMLA leave’s legal pitfalls

We see a lot of FMLA cases – and most involve retaliation. In these lawsuits, workers claim they were punished, fired, demoted or harassed for taking FMLA leave. And in some, employers pay a steep price for their line managers’ behavior.

But we also see plenty of FMLA cases where employers aren’t trying to retaliate against anyone. They simply failed to launch the policies or communicate the messages necessary to ensure compliance with the law.

Remember: Honest errors can cost an employer too.

Be aware and know the law

Here are three common FMLA mistakes, along with suggestions to help employers avoid making them:

  1. Failure to notify employees of their FMLA rights to leave. While no one expects HR to make medical diagnoses, it’s important to understand an employee does not have to ask for FMLA leave by name. If health problems or a family emergency are evident, it’s incumbent on the employer to inform the employee he may be entitled to up to 12 weeks of unpaid FMLA leave.
  2. Not taking an employee’s medical condition seriously. We’ve seen cases where HR pros and other managers tell an employee, “You look fine to me” when the employee is suffering from a debilitating condition. In other cases, employees present clear signs of health problems, but employers ignore what they see until they eventually fire the employee for poor performance or attendance violations. Inevitably, a lawsuit follows.
  3. Misunderstanding attendance issues. Most employers know they may not punish people for taking FMLA leave. But what about attendance rewards, for example? If an employee has a perfect attendance record before FMLA leave, the employer may not take away a promised attendance bonus because of the time missed during the FMLA leave.

An employer’s post-FMLA obligation

“I feel really bad about this because you’ve been so sick,” said Supervisor Steve Jones. “But we’re going to have to let you go. You’ve just been calling in sick far too often.”

“What?” asked Samantha Bradley. “But I’m one of the best workers you have.”

“That’s true when you’re here,” said Steve. “That’s been rare. You’re killing us, Sam. Customers have complained. I need someone here full time.”

“This doesn’t seem right,” said Samantha. “You’ve complained about my absences for a couple of years. And now that I took FMLA leave earlier this year to have a child, you fire me?”

“Your FMLA parental leave was seven months ago,” said Steve. “This is for your constant calling in sick now.”

“This is retaliation,” said Samantha. “Pure and simple.”

Samantha sued. Did she win?

The decision

No. Samantha lost her case.

After reviewing the evidence, the court concluded that Samantha had been fired for excessive absenteeism.

The judge said the seven-month gap between the firing and Samantha’s taking of the FMLA leave was strong evidence that the company didn’t retaliate against her.

The court ruled that while it was true that Samantha performed her job well when she was there, companies can make regular attendance a necessary condition of employment.

Sick workers and FMLA leave

A supervisor has to make a tough call when employees have used up their sick days and FMLA leave time and still call in sick.

Everyone with a heart will sympathize with a sick employee, at least until everyone else has to chip in and do more.

The work can’t get done if people don’t show up. That’s why companies have absenteeism policies in the first place.

If you have a worker who is in unfortunate straits, first take the case to HR.

They may be able to show which benefits the person is entitled to, such as short-term or long-term disability.

If you want to keep the person partially productive, consider offering light-duty assignments or part-time assignments more in keeping with the person’s limitations.

Cite: Panto v. Palmer Dialysis Center, U.S. District Court, No. 01-6013, E.D. Pa. Fictionalized for dramatic effect.

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