Get workers back fast from FMLA leave: Run FMLA concurrently with other leave

Economic times remain tough, so many companies are holding off on adding more employees. That makes managing your existing staff harder than ever, especially when one or more employees takes protected FMLA leave and you have to make sure their work still gets done.

Transferring all those duties to other employees may not be realistic, since they already may be stretched to the limit. One possible solution: Hire temporary employees to fill the gap.

A better solution: Get employees to return from FMLA leave as soon as possible.

You can and should use the FMLA rules to encourage speedy returns. One of the most effective ways is to run their unpaid FMLA leave time concurrently with any paid leave they may have coming. That way, they can’t use up that paid time first and get another 12 unpaid weeks of FMLA protection.

Recent case: Lisa Price, who worked for Mount Sinai Hospital as a billing expediter, received regular pay increases during her first four years on the job. Then the raises stopped and she began to feel stressed and overworked. Price regularly complained to her supervisor.

Then one day, her supervisor called her name and got no response. At that point, Price claimed, the supervisor grabbed her by the arm and dragged her into a meeting. Once again, an upset Price complained that she was overworked and underpaid. Her supervisor then allegedly told her she was free to resign.

Price went to her doctor and got a note saying she was unable to work for some period due to migraines, sleep problems, gastrointestinal disturbances, depression, panic attacks and back pain from overwork.

Mount Sinai Hospital sent a letter informing Price that her FMLA leave would start running immediately, concurrent with her paid time off.

Twelve weeks later, the hospital fired Price with an effective date set for when her remaining paid time ended. It explained that she had used up all her leave, including FMLA leave, and was no longer entitled to return to her job.

Price sued, alleging her FMLA leave hadn’t expired. Her rationale: She had wanted to use her accumulated paid time off instead.

The court dismissed her claim because employers are free to run FMLA leave concurrent with other leave. FMLA job protection expires after the 12 weeks are up, and even if the employee remains off work on other paid leave, she is no longer guaranteed her job back. (Price v. The Mount Sinai Hospital, et al., No. 07-11318, SD NY, 2010)

Final note: Under some circumstances, employees who use up their FMLA leave still have limited job protection. That can happen if the employee is disabled under the ADA. In those cases, additional time off amounts to a reasonable accommodation.

In this case, Price’s lawsuit—in addition to alleging FMLA violations—claimed she was disabled. However, the court concluded that none of her conditions was disabling because she couldn’t show they substantially impaired a major life function. Her physical complaints were temporary and minor rather than permanent, and resolved themselves quickly once she took some time off.