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Be sure managers know they can’t discipline employees for using FMLA

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in FMLA Guidelines,Human Resources

Some managers resent the idea of FMLA leave. They may believe that employees who take time off for family or medical needs aren’t really team players or don’t have their work priorities straight. Of course, that attitude is the very reason Con­gress passed the FMLA—so employees wouldn’t have to fear being fired for trying to balance family needs with work.

Don’t let an angry manager turn routine FMLA leave into expensive and time-consuming litigation. Make sure all supervisors understand their FMLA obligations—and that they have no choice but to cheerfully allow em­­ployees to exercise their rights.

Then make doubly sure that any discipline that follows FMLA leave is fair, consistent and follows standard company policy.

Recent case: Patti was a salesperson who sometimes worked from home. She always met her sales quotas and received good reviews. Patti’s husband was stricken with cancer around the same time she got a new supervisor.

Patti’s husband had twice-weekly chemotherapy sessions. She wanted to accompany him, especially in the rough hours following each treatment. But Patti also wanted to preserve as much time off as possible, as her husband’s cancer was likely terminal.

Patti requested intermittent FMLA leave. Her new supervisor told her that she needed to take a week of accrued paid time off to decide how she was going to use FMLA leave—either intermittently or in one block that would use her full FMLA allotment. She protested; a week later, her request for inter­mittent leave was approved.

Her husband died sooner than Patti expected and she returned to work a week later. Shortly after, she found herself on a performance improvement plan (PIP), ostensibly because her work efforts lacked “urgency.” When she asked for specific goals rather than simply trying to become “more urgent,” she didn’t get anywhere. She was ordered to be in the office 40 hours per week and was no longer permitted to work from home.

After 30 days on the plan, she was terminated. She sued, alleging that trying to force her to take full FMLA leave was interference with her right to intermittent leave. She also alleged she had been fired for taking FMLA leave.

As evidence, she pointed out that the usual PIP time allotted for improvement was 90 days. She also uncovered several unflattering emails between managers that referred to her lack of urgency when she asked to use a day of paid time off even though she had many weeks of accumulated leave. Lack of urgency, she explained, must be code for taking FMLA leave. Finally, she explained that she had been a top performer who was already 40% over her goals for the year when she was terminated.

The court had heard enough. It said her case should go to trial. (Brock-Chapman v. National Care Network, No. 10-CV-454, ND TX, 2013)

Final note: Train managers that FMLA leave is an entitlement, not a privilege. It is the supervisor’s job to make sure employees can take FMLA leave if they are eligible to do so and want to.

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