Was her intermittent FMLA leave bogus?

by on March 18, 2009 · 0 Comment POSTED IN: HR Info Center

Supervisors need to know FMLA regulations before disciplining people taking intermittent FMLA leave

The raucous chatter of the machines on the shop floor hushed when supervisor Phil Schwab ushered Betsy Morris into his office and shut the door.

Betsy fidgeted. “I hope this won’t take too long. I need to get back to my machine.”

“You won’t have to worry about that any more, Betsy,” Phil said. “We’re terminating you, effective immediately. I’ve arranged to have your final pay ready down in the Payroll department.”

“What!” Betsy exclaimed. “I can’t believe you are doing this to me! What have I done except try to do the best job I could?”

Stan stood his ground. “We differ on what ‘doing the best job’ means, Betsy. And making personal calls on company time is the last straw. You know that’s against company policy.”


“Come off it, Stan,” Betsy replied. “I wasn’t born yesterday. That’s a smokescreen. The real reason is the intermittent FMLA leave I have been taking for anxiety and depression, isn’t it?”

Stan leaned forward. “Your ‘leave’ costs the company money. That lathe needs to run 24/7 to meet our quotas.

“That’s why I’ve moved you to different machines after each of your leaves,” Stan continued. “It’s not personal, it’s business.”

Betsy’s eyes narrowed. “Bull! Ever since I started taking leave you’ve been on my case. Those other machines are harder for me to operate. You’re punishing me!”

“Not really, Betsy,” Stan replied. “We have a business to run. I can’t have you coming in late and leaving an hour early when you feel like it.”

“Oh yeah? And when I wanted to use paid vacation time you insisted on 30-days’ notice,” Betsy said. “That didn’t start until I began taking intermittent FMLA leave.”

“Well, you look fine to me,” Stan said. “Besides, everybody around here knows your time off has more to do with your personal needs than medical necessity. It puts the company in a bind.”

“You just earned yourself a lawsuit, Stan,” Betsy huffed. “I’m entitled to take intermittent FMLA leave and you know it.”

Betsy sued the company and her supervisor for violating the FMLA regulations and for retaliation.

She won. A jury awarded Betsy over $215,000, plus attorney’s fees. The jury found moving Betsy to more difficult machines, and requiring advance notice to use vacation time, showed retaliation aimed specifically at Betsy. Firing her for personal phone calls was a cover up for retaliation.

Management Lessons on FMLA regulations

Few workplace issues generate more emotions and questions than intermittent FMLA leave. It’s easy to abuse and managers find it very disruptive. Stan probably had no doubt Betsy was malingering. But he acted rashly. Here’s what to do if you think someone’s cheating:

  • Require medical re-certification (at the employee’s expense) every 30 days, or even more often if you think someone’s really abusing the system.
  • Demand that employees make a “good faith” effort to give advance notice to minimize business disruption.
  • Work with HR from the get-go to make sure FMLA rules are followed closely and there’s no hint of retaliation.

Cite: Hite v. Vermeer Manufacturing Co., No. 05-2297, 8th Cir., 5/9/06.

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