FMLA law: FMLA leave, vacation time, and sick days
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FMLA law: FMLA leave, vacation time, and sick days

When FMLA leave coincides with sick days and vacation time, lawsuits often arise.

Adverse decisions and FMLA law

Some managers are afraid to make any unpopular employment decision after an employee returns from FMLA leave. They shouldn’t be – as long as they’ve complied with FMLA law and have kept thorough records.

In this case, an employee was terminated after she failed to report to work after FMLA leave.

She didn’t return her calls

The employee didn’t return her boss’s telephone calls, she failed to provide a note from a doctor requesting additional leave and she didn’t respond to a written request to make contact or be terminated.

The employer – confident that the employee had received the calls and the letter, but had chosen to flout company policy – fired her.

The employee sued. Her claim: The employer had violated FMLA law by retaliating against her for taking leave. During her testimony, she claimed that the retaliation had begun after she requested FMLA leave, but before she took it. Specifically, she claimed she’d been denied vacation in retaliation for having requested FMLA.

How HR won this FMLA law case

Fortunately for the employer, HR had maintained a written record of her vacation request and the discussion that followed: True, she’d been denied a four-day vacation at Christmastime. But she hadn’t been singled out for that. There were other people who’d been denied holiday-season vacations.

Plus, she’d been told she could take two days off if she could get someone to cover for her – which she did.

That didn’t look like retaliation to the judge.

HR’s documentation proved that the employee’s case lacked merit. Without a written record of her vacation request, the mere time-sequence of events might have made it look as though she’d been denied a vacation because she requested FMLA leave.

Remember, FMLA law doesn’t protect an employee from any adverse action that would have happened had she not requested FMLA leave.

Cite: Krauss v. Catholic Health Initiatives.

Manager counted family medical leave as a sick day against FMLA law

A worker suffered a stress attack that required he go to the emergency room. Several months later his boss, irritated that the worker had been absent several times and left his colleagues shorthanded, fired him.

Turns out the manager counted that day off from the stress attack as a regular absence rather than FMLA leave, which it clearly qualified as under FMLA law.

This opened the door for the worker to claim that the company retaliated against him for taking FMLA leave. He won $171,000.

Cite: Taylor v. Invacare Corp. U.S. Court of Appeals, 6th Circuit. Nos 01-3824, 01-3827, 5/21/03.


  • Tammie says:

    just would like to know if a company can make you take your vacation time and earned time off before letting you have your FMLA

    • Anonymous says:

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • Mschellsmith says:

    can an employer tell you that you must put in a resignation after you give them a doctors note that state you are to be on restricted duty for 10 days due to a medical condition?

  • Sirbreina says:

    what if you could not call in because you awake in a panic attack called when i knew the attack happen but not in the 2 hrs requirement but in one hrs thirty min when i could take my medication

  • Roland Leone says:

    Can a employer force someone to use their vacation time rather ten sick tme while on FMLA ?

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