Beware body language discouraging FMLA

Sometimes, a boss can cause big legal trouble without even saying a word. A sigh or negative look can be enough if the worker on the receiving end perceives the behavior as disapproval.

Take the FMLA, for example. Case law essentially supports the idea that anything an employer does to discourage an employee from taking FMLA leave may be considered interference with her FMLA rights.

Recent case: Lynn, a registered nurse, ran the neonatal unit at Magee-Women’s Hospital in Pittsburgh. The hospital was having financial problems and determined that it would have to cut a position to save money. Managers decided to eliminate the head neonatal nursing position, but did not immediately announce its decision.

Meanwhile, Lynn put in a request for intermittent FMLA leave to care for her father, who was about to have major surgery and would need part-time assistance at home for several months. Lynn’s request was approved.

After a few weeks, her supervisor asked her to try to schedule her father’s appointments early in the day or at the end of the day. According to Lynn, this was accompanied by sighs and body language indicating that her boss disapproved of her taking leave.

Then Lynn was terminated as previously planned. She sued, alleging both FMLA interference and FMLA retaliation.

She testified that she felt constrained against taking as much leave as her father needed her to take because of the supervisor’s demeanor and request to alter her leave schedule.

The court said Lynn’s FMLA interference claim could go forward. However, it dismissed Lynn’s retaliation claim because the decision to eliminate her job occurred before she requested leave. (Cimino v. Magee-Women’s Hospital, WD PA, 2017)

Advice: Train supervisors to handle FMLA leave in a supportive, positive and upbeat way.