Employee works despite FMLA leave? That’s not your fault–nor FMLA interference — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Employee works despite FMLA leave? That’s not your fault–nor FMLA interference

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in Firing,FMLA Guidelines,Human Resources

When employees need intermittent FMLA leave, they are entitled to take time off free from work responsibilities. Of course, that may leave some tasks undone. Some employees, especially those in management positions, may feel obliged to work additional hours, or may sometimes forgo taking leave.

As long as there’s no employer pressure to get the work done, that extra work won’t support an FMLA-interference lawsuit.

Recent case: Susan managed a retail store and was responsible for scheduling subordinates, including assistant managers. When her husband developed cancer, she requested inter­­mittent FMLA leave to take him to biweekly chemotherapy sessions. Her request was approved.

Susan was fired after a deposit she said she had made went missing. She sued, alleging, among other claims, that the retailer had interfered with her intermittent FMLA leave rights.

She claimed that because she had so much work do, she frequently came in on chemo days, working from early morning until her husband’s appointment and then returning at night to close the store.

The employer countered that Susan could have used her supervisory authority to schedule assistant managers around her intermittent FMLA leave. It said it wasn’t responsible for her failing to do so, or for feeling compelled to work extra hours. The court agreed and tossed out the case. (Sizemore v. Dolgencorp of Texas, No. 4:10-CV-650, ED TX, 2012)

Final note: Susan also claimed she was unfairly fired for losing the deposit. She claimed that two male managers who lost deposits weren’t fired—evidence, she said, of discrimination. But in one case, the bank found the deposit and accepted blame. In the other, the manager was fired.

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