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Beware perils of interfering with intermittent FMLA leave

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in Human Resources

Let’s face it: It makes a manager’s job harder when employees are out on FMLA leave. That’s especially true with intermittent leave, in which an employee with a serious, chronic health condition can take sporadic and largely unpredictable days off. Supervisors have to juggle assignments and schedules to work around the employee’s leave. It’s easy to see how resentment could build.

Don’t let those hard feelings turn into an FMLA interference lawsuit. Instead, insist that managers honor approved intermittent leave without hassling the employee.

Recent case: Amanda Howard worked for the Lancaster office of the Pennsylvania Department of Public Welfare. Her job was to help clients seeking welfare benefits fill out forms. Although everyone in the office was expected to help with filing, that task was not listed as an essential function of Howard’s job.

When Howard was diagnosed with chronic fibromyalgia, she needed periodic time off for doctor appointments and days when her condition flared up. She also was depressed and had tendonitis, which her doctor said was related to the fibromyalgia. HR approved her request for intermittent leave under the FMLA.

When Howard’s tendonitis flared up, she asked for filing help. Instead, her supervisor assigned extra filing to Howard, even though she explained that it worsened her condition. The supervisor told her that the pain was probably caused by exercise classes Howard took.

Howard then got a second certification from her doctor, restricting lifting and filing tasks. She used intermittent FMLA leave to get the certification. When she returned from the appointment, her super­visor sent her home with instructions to return when she could perform every segment of her job, including the filing. The super­visor said the time off would count against Howard’s total FMLA entitlement.

Howard sought to return to work several times, noting that she could perform all her job’s essential functions. Filing, she pointed out, wasn’t essential. The supervisor wouldn’t relent. Howard was then fired after she used up all her FMLA leave.

She sued, alleging interference with her right to take FMLA leave.

She argued that she had been in a “Catch-22” situation: She was ready to do her job, but her supervisor wouldn’t let her return. And because she was able to do her job, she wasn’t disabled under the ADA either and therefore couldn’t ask for a reasonable accommodation to allow her return. That caused her to use up her leave and lose her job despite being ready and able to perform every essential function.

The court said she could take her case to trial. It reasoned that by blocking her return, the supervisor was interfering with her FMLA rights. (Howard v. Pennsylvania De­part­ment of Public Welfare, No. 11-1938, ED PA, 2011)

Final note: Intermittent leave is a right, not a privilege. It doesn’t matter if taking FMLA leave inconveniences others. Good supervisors manage around the leave and don’t punish employees for exercising their FMLA rights.

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