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Separate who approves FMLA, who disciplines

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in FMLA Guidelines,Human Resources

Here’s an easy way to prevent many FMLA interference and retaliation lawsuits: Make sure someone other than the supervisor who ordinarily disciplines an employee is responsible for approving and administering FMLA leave.

By separating those functions, you minimize the risk that an employee might be able to connect FMLA leave with an adverse action such as termination.

Recent case: Miguel worked for Cardone Industries and, over several years, took considerable FMLA leave to care for his ailing father.

In his last year with the company, he applied for intermittent FMLA leave and asked for permission to use the leave as needed rather than having to get new certifications every time his father needed help. HR approved the leave for one year and gave him instructions on how to use it as needed.

Cardone Industries had very clear rules about attendance and clocking in. Employees could not punch the time clock more than three minutes before their shifts began and were not supposed to start work without punching in.

One day, Miguel’s supervisor ­discovered he had not clocked in, but was at work. Miguel tried to explain he could not get his magnetic card to work in the main door lock. He said he followed another employee in through another entrance, and in the confusion forgot to punch the clock.

The company checked the electronic main door lock and couldn’t find a problem. In fact, others had successfully scanned themselves in around the same time without any trouble. Miguel was fired.

He sued, claiming his employer had retaliated against him for using FMLA leave.

But the court pointed out that the supervisor who investigated his time clock problems had noth­­ing to do with approving his FMLA leave. There was simply no apparent connection between the discipline and Miguel’s leave request. The case was dismissed. (Calero v. Cardone Industries, No. 11-3192, ED PA, 2012)

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