Can FMLA leave be involuntary? Court punts

A federal court hearing an FMLA interference case has sidestepped deciding whether it is legal for an employer to place an employee on involuntary FMLA leave.

Recent case: Sonia Figueroa worked as a housekeeper for an Embassy Suites hotel. She frequently missed work for health reasons, including arthritis and “abdominal complications.” The FMLA covered her time off, as she had worked for the company the requisite year and 1,250 hours.

Then HR, apparently anticipating that she might need intermittent leave in the future, told her she could not come to work until she provided medical certification showing she had a serious health condition and certifying her need for intermittent leave.

Figueroa emailed HR and explained that, at the time, there was nothing preventing her from working at her regular job. Therefore, Figueroa wrote, she didn’t understand why she should get the forms filled out. HR still demanded the forms—and Figueroa assumed she had been terminated.

She sued, alleging she had been placed on involuntary FMLA leave and that Embassy Suites’ request for medical certification interfered with her FMLA rights.

But the court declined to rule on involuntary leave. Instead, it said that under the facts of this case, Figueroa had no FMLA interference suit because she was not unable to perform her job when told not to come to work. (Figueroa v. Merritt Hospitality, No. 11-1807, ED PA, 2011)

Final note: Figueroa was not returning from FMLA leave at the time HR requested the certification. Had she been, refusing to reinstate her would have violated the FMLA. The court left for another day the decision on whether an employer can force an employee to take FMLA leave if she is suffering from a serious health condition but wants to remain at work.