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Warn managers: No negative comments on FMLA

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In tough economic times like these, management may expect that employees will keep their noses to the grindstone and keep working no matter what. But anxiety about the economy and job prospects may adversely affect some employees, especially those prone to stress-related illnesses or whose physical problems flare up when working long hours.

As a result, you may see an increase in requests for FMLA leave.

Be very careful not to criticize employees for trying to exercise their FMLA rights. If there are any comments that seem to suggest that management holds it against employees who take FMLA leave, be prepared for a legal challenge. Just one negative comment can land you in front of a jury if the employee in question loses his job during the downturn.

Recent case: James Daugherty has a chronic back condition and takes narcotic medications to control the pain. He requested and was approved for intermittent FMLA leave. But then his doctor said Daugherty needed more than a month off. That’s when, Daugherty claimed, an HR manager told him if he took that amount of leave “there would not be a job waiting for me when I returned.”

Sure enough, Daugherty was laid off. When business picked up, his employer told him he could return to his job if he could prove he was no longer taking heavy doses of medication.

Daugherty sued, alleging he had been denied reinstatement for taking FMLA leave.

The 6th Circuit Court of Appeals said the alleged HR statement was enough to send the case to trial. The employer will have to convince a jury that its refusal to reinstate Daugherty had nothing to do with the alleged statement or his use of FMLA leave. That may be a tough sell. (Daugherty v. Sajar Plastics, No. 06-4608, 6th Cir., 2008)

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