Beware denying ‘vacation’ request in disguise

If there’s no use-it-or-lose-it policy in place, employees can easily stockpile weeks of vacation or personal leave. Should they become ill, they may try to use that time as a substitute for FMLA leave.

If an employee asks you to approve an especially long vacation, and you suspect the underlying reason may be a covered condition under the FMLA, beware automatically rejecting the request.

Reason: You might be risking an FMLA interference lawsuit. Plus, any subsequent discipline could be considered retaliation.

Recent case: Patrick Hurley worked for Kent Security Naples for over eight years, serving as the president of his location. Over the years, he suffered from bouts of depression and anxiety, but apparently kept a lid on the condition and didn’t use much vacation.

That changed when he began having severe panic attacks at work. He then sent a request to the company CEO informing him that he would be taking much of the rest of the year off on vacation. He pointed out that he had accumulated quite a few weeks of vacation.

HR Forms D

The CEO denied his request and told him to report for a meeting. During the meeting, Hurley explained the time off was for medical reasons. The company terminated him.

Hurley sued, alleging both interference with his FMLA rights and retaliation. He provided medical certification of his condition after the fact.

The court said his case could go forward, based largely on timing and the allegation that the CEO knew Hurley wanted to use his vacation for medical reasons. (Hurley v. Kent of Naples, No. 2:10-CV-334, MD FL, 2011)

Advice: Don’t fire someone who has just revealed the need to take time off for a medical condition unless the discharge reason is clearly unrelated to the request.