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Don’t expect employees on FMLA leave to stay in bed

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in FMLA Guidelines,Human Resources

Issue: Make sure you're in the right before punishing people for 'misusing' FMLA leave.

Risk: Tons in legal fees defending an arbitrary decision.

Action: Make it clear to employees that they are to use FMLA leave time for its intended purpose.

You can discipline employees if you discover that they lied about their need for Family and Medical Leave Act (FMLA) leave or they seriously misused their leave time. But think twice before you lower the boom. A court may see what you consider a serious misuse of FMLA time as merely a trivial offense.

The bottom line: You must allow employees to go about the necessary aspects of their daily lives while on FMLA leave. But make clear to employees before they take FMLA leave that they should use the time for its intended purpose, whether that's to care for their own condition or the serious condition of a relative.

Recent case: A customer service rep with arthritis worked out an arrangement with her employer that allowed her to take intermittent FMLA leave as necessary for her condition. But when another employee spied the rep shopping during her leave time, the company fired her for misusing FMLA leave.

She sued and won. The district court ruled that the employee used her FMLA leave for its intended purpose, noting that the law contains no requirement that employees on medical leave must "immediately return home, shut the blinds and emerge only when prepared to return to work." (Jennings v. Mid-American Energy Co., No. 3:02-cv-90069, S.D. Iowa, 2003)

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