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Generous about leave? Beware FMLA suit anyway

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in FMLA Guidelines,Human Resources

What happens if an employer discourages an employee from taking FMLA leave and instead offers more than 12 weeks off with full pay? Can the employee still sue for interference with his right to FMLA leave if he isn't reinstated to his prior position or an equivalent? The apparent answer is "yes."

Recent case:
Richard Smith, who worked for Primecare Medical as vice president of operations, underwent gastric bypass surgery. He expected to be off work for about three weeks following the major surgery.

Complications ensued, and Smith's boss visited him in the hospital to tell him he could stay off as long as he needed, with full pay. No mention of FMLA leave was made, and Smith never took any. He was, however, ready to return to work by the end of 12 weeks. Even so, his boss told him to wait a little longer; Smith continued to receive his salary.

When Smith finally returned to work, Primecare moved him into a different position that paid less.

He sued, alleging interference with FMLA rights. The company argued Smith never took FMLA leave and therefore wasn't entitled to reinstatement.

The court disagreed in principle. It reasoned that Primecare couldn't just ignore a condition that obviously qualified for FMLA leave. Plus, it considered this obvious fact: If Smith had taken FMLA leave, he would have been able to return to work in time. The case will go to a jury trial on interference with the right to FMLA leave. (Smith v. Primecare Medical, No. 1:08-CV-1397, MD PA, 2008)

Final note: Remember, an employee who says he needs surgery has given you notice he may need FMLA leave. Provide him with the information to follow up.                                                                                  

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