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Beware denying ‘vacation’ requests that are thinly disguised as FMLA leave

by on
in FMLA Guidelines,Human Resources

If your organization doesn’t have a use-it-or-lose-it leave policy in place, em­­ployees can easily stockpile huge blocks of vacation or personal leave. Then, if they become ill, they may try to use that time as a substitute for FMLA leave.

So, if an employee asks you to ap­­prove an especially long vacation, and you suspect the reason may be a covered condition under the FMLA, beware automatically rejecting the request.

Reason: You may risk an FMLA in­ter­ference lawsuit. Plus, any subsequent discipline could be considered retaliation.

Recent case: Patrick Hurley suffered from depression and anxiety, but apparently kept a lid on the condition and didn’t use much vacation.

That changed when he began having severe panic attacks at work. He sent a request to the CEO asking to take most of the rest of the year off on vacation. He pointed out that he had accumulated several weeks of vacation.

The CEO denied his request and told him to report for a meeting. During the meeting, Hurley explained the time off was for medical reasons. The company terminated him.

Hurley sued, alleging both interference with his FMLA rights and retaliation. He provided medical certification of his condition after the fact.

The court said his case could go forward, based largely on timing and the allegation that the CEO knew Hurley wanted to use his vacation for medical reasons. (Hurley v. Kent of Naples, No. 2:10-CV-334, MD FL, 2011)

Advice: Don’t fire someone who has just revealed the need to take time off for a medical condition unless the discharge reason is clearly unrelated to the request.

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