When are workers' actions while on leave considered FMLA violation?

by on January 14, 2010 · 0 Comment POSTED IN: HR Info Center

Worker pushes envelope on family leave: Did he commit an FMLA violation?

Supervisor Al Dunbar’s initial reaction was to say no when Julio Rosario asked him if he could take family medical leave. But Al changed his mind at the last minute, telling Julio, “This may not really be covered, but I feel for you and want to help out.”

Julio, a metal assembler, had taken leave periodically over the past year to care for his seriously ill wife.

But now his wife’s father had died in Mexico, and Julio wanted to go to the funeral.

A father-in-law didn’t qualify as “immediate family” under the company’s bereavement policy, but Julio said his wife was too sick to travel alone.

On one condition…

“That would normally be an FMLA violation. However, I’ll let you go. The only condition,” said Al, “is that you call me every three days and let me know how it’s going. I need to know when you’ll be back because I’ve got staffing concerns in the plant.”

Unfortunately, Julio didn’t call three days later. He was gone 10 days without a single communication, so Al fired him for FMLA violation when he got back.

“But there were no phones,” said Julio. “I couldn’t call.”

Al explained that Julio’s failure to call created a scheduling nightmare. “I made a simple request, you didn’t follow it. You’re fired,” Al said.

Julio sued, claiming his family and medical leave rights had been violated.

How the court ruled

The court rejected Julio’s claim and ruled in favor of the company.

It said that employees have the right to leave work to care for a family member with a serious health condition.

But it’s an FMLA violation when a family member decides to travel away from home for personal reasons unrelated to medical treatment, such as attending a funeral.

FMLA violation

Terminating somebody for receiving unorthodox medical treatment while on FMLA leave is an FMLA violation.

An airline mechanic, who was also a racecar enthusiast, asked for time off to attend a car show. His boss said no.

Next, the mechanic requested leave because he was depressed. His therapist suggested that he attend the car show as therapy.

The suspicious employer hired a private investigator who observed the mechanic attending the car show. The mechanic was terminated for making a fraudulent sick-leave claim.

The mechanic filed a lawsuit claiming FMLA violation. He won in court and was reinstated with back pay.

This case is a reminder that employees who can document an FMLA-qualifying condition (such as depression) are entitled to medical leave.

Cite: Dillaway v. Ferrante.

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