Did FMLA violation trump sick-leave rules?

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

“How dare you put surveillance on my home!” Marie Tyler burst out at HR manager Brenda Bennett. “And then suspend me based on your spying?”

Brenda looked at Marie coolly.

“It’s called the Sick Abuse List,” she said. “It applies to everybody. It’s a company policy designed to prevent sick leave and FMLA violation, and it’s in your employee manual.”

“No, it’s not,” Marie interjected.

“Oh, but it is,” Brenda continued, opening the manual on her desk. “Right here on page 32. You used 40 days of sick leave over the past two years and that put you on the list. You see, right here, anybody on the list can be called or visited by a sick leave investigator during work hours.”

Marie wasn’t looking at the paragraph Brenda was pointing to. “I don’t care,” she said. “I’ve got rights as a citizen of this country, and this is an FMLA violation.”

Enforcing call-in policy

“I’m sorry you feel that way,” Brenda said. “But the suspension sticks. Three days. That’s two days for the times we saw you’d left home without calling the Sick Leave Hotline, and one day for the time we called and you weren’t there. It’s all in the manual.

“And by the way, there was no suspension for your first FMLA violation. You got a warning for that. It’s called progressive discipline, and we think it’s fair,” Brenda concluded.

“You have a weird idea of what’s fair,” Marie stormed. “Anyway, I was on FMLA leave and you know it! That means you can’t bother me with sneaky spies and intrusive phone calls. We’ll see about who is committing an FMLA violation when a court gets a look at this!”

Marie sued the company for interfering with her FMLA rights. Did she win?

The decision

No. The court ruled that the company’s sick leave abuse policy was reasonable, and threw out Marie’s case. The policy neither prevented nor discouraged employees from taking FMLA leave. It simply tried to enforce the legitimate use of sick leave, including FMLA leave, and avoid sick leave and FMLA violation the court said.

Marie argued that because she lost pay due to the suspensions, she wasn’t restored at the same salary at the end of her FMLA leave, which qualifies as an FMLA violation. Marie also claimed the company had to back off once it approved her leave.

Not so, the court said. Employers can use reasonable means to ensure that employees don’t commit FMLA violation, especially when an employee has a documented history of calling in sick abnormally often. Marie’s suspension was justified.

The FMLA can be complex, but it’s not a license to steal time off. You do need to be careful about interfering with employees’ FMLA rights. You mustn’t make it unduly hard for them to request leave, or pressure them once on leave. But requiring employees to obey reasonable standards, like an even-handed sick leave policy, isn’t likely to give anybody ammunition to win an FMLA violation case.

Cite: Callison v. Philadelphia, No. 04-2491, 3rd Cir., 5/19/05. Fictionalized for dramatic effect.

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