After FMLA leave, don’t presume future needs

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

Here’s a problem to warn supervisors and managers about: When an employee with a disability returns from FMLA leave, don’t assume she can’t do her job or will need more time off.

For example, it might seem like common sense to suggest that an employee not take any more vacation or sick time off once she’s used up all her FMLA leave. But the employee might interpret that as disability discrimination—or even retaliation for taking FMLA leave.

Recent case: Linda Harper worked for 25 years as a secretary for the New York City Housing Authority. Then she was diagnosed with multiple sclerosis, an incurable neurological disorder. Harper took 12 weeks of FMLA leave to get her condition under control.

Trouble started when Harper returned to work. She said her job responsibilities were drastically reduced and that she was moved to a different floor. Harper also claimed she was not allowed to take lunch breaks without permission—while her co-workers didn’t have any such restrictions. Finally, she said her supervisors told her to save her vacation and sick leave for use in the future in case she got ill again. When she took a few days off to attend her daughter’s graduation, she said her supervisor berated her for using up the time.

That prompted Harper to quit, and then she sued for disability harassment and retaliation for taking FMLA leave. The court said her case should go to trial. (Harper v. New York City Housing Authority, No. 09-Civ-5303, SD NY, 2009)

Final note: Don’t presume that someone with a disability will need additional time off. If or when the time comes, then you can decide how to handle time off. Until then, assume all is well.

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