is an entitlement. Employees can’t be deprived of it as long as they meet the law’s requirements for length of employment and hours worked and must deal with their own or a family member’s serious health condition.
Afterleave has been approved, it’s a huge mistake to question employees about how they use their leave. Essentially, doing so may be interpreted as interference with the right to take leave.
Recent case: Crystal Lynch worked for the city of Largo’s Fire Rescue Department for about a year before she was diagnosed with epilepsy. The diagnosis came after she experiences a seizure at work. In addition to seizures, Lynch’s epilepsy caused headaches, migraines, dizziness, lightheadedness, sleepiness and nausea. She was approved forwhen the illness affected her.
All went well for about a year and she even received a promotion and a pay increase. Her new job, however, required her to drive a city-owned vehicle to conduct fire inspections. Then she had another seizure.
Lynch’s condition significantly worsened and she began taking more powerful prescription drugs to cope with her epilepsy. As a result, she missed more work and used moreleave.
Her supervisor began taking notice. After she left work early one day, he marked the absence as regular sick leave. When she returned, she asked that her time records be changed to reflect the time as FMLA leave. The supervisor told her to make the changes herself, which she did. When Lynch changed the type of leave, she also changed the number of hours used, subtracting an hour because when she left, she had not yet taken her lunch break.
Her supervisor didn’t say anything about the change, even though he later admitted that the routine practice was to ask employees about any changes they made and get them to correct it if there was a mistake.
Instead, he called Lynch into the office and began questioning her on her increasing use of leave, telling her that others had noticed that she had “changed” lately.
The supervisor then decided to terminate Lynch for falsifying her time records. He sent an email to managers informing them that Lynch would not be with them any longer. But he also invited Lynch to explain why she should not lose her job.
Lynch sued, alleging interference with her right to take FMLA leave, among other claims.
She argued that by questioning her FMLA use on her return, the supervisor was trying to dissuade her from ever taking any more. Plus, she argued, the fact that he circulated an email saying she was no longer with the organization and didn’t follow the usual routine for letting employees correct time card errors was evidence that she was really being discharged for taking FMLA leave.
The court agreed she had a claim and said the case could go to trial. (Lynch v. City of Largo, No. 8:10-CV-1064, MD FL, 2011)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Can you pass the constructive discharge test? Beware lawsuits from employees who quit
- Make sure supervisors understand: Do not discourage employees from using FMLA
- Tell bosses: No comments on insurance cost, age
- Cutting an employee's pay is perfectly legal, but first review his potential for a bias lawsuit