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Make sure supervisors understand: Do not ­discourage employees from using FMLA

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in FMLA Guidelines,Human Resources

The FMLA gives eligible em­­ployees an absolute right to take leave and prohibits employers from discouraging employees from taking that leave. Anything that dissuades employees from using FMLA leave is grounds for litigation.

Recent case: Jack Bell worked for the Dallas County Department of Health and Human Services as a disease intervention specialist. Bell had his own medical issues, suffering from severe allergies and related ear problems.

Bell’s doctors certified that he had a serious health condition and needed intermittent FMLA leave when his condition flared up. He was approved for 480 hours of intermittent leave.

Bell frequently called in sick and missed work, using his intermittent leave. This prompted the county to tell him he would be placed on full-time FMLA leave if he continued to use so much intermittent leave. It said Bell had to get his doctor to authorize his return to full-time work.

Bell got the doctor to certify he was available for full-time work, but then continued his string of FMLA absences. The county followed through on plans to place him on full-time FMLA leave. Bell protested, claiming he had “no need to exhaust” his FMLA leave “at this time.” He returned to work, but after another absence, the county terminated him.

He sued, alleging interference with his right to FMLA leave and retaliation for taking it.

The county explained that it terminated Bell for excessive absences, and that it hadn’t counted FMLA leave against him. That was enough for the court to toss out his retaliation claim.

But the county didn’t fare as well with the interference claim. Bell argued that by telling him that he had to take all his FMLA leave at once when he only needed intermittent leave, the county was interfering with his entitlement to intermittent leave. In effect, he claimed his employer was trying to make him use up his FMLA leave so it could terminate him for absences that otherwise would have been covered by intermittent leave.

The 5th Circuit Court of Appeals concluded he had a case and sent the case back to trial. (Bell v. Dallas County, No. 10-10317, 5th Cir., 2011)

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