Don’t raise performance bar solely on workers taking FMLA

Talk about a multimillion-dollar mistake. In a case that could spell a trend as more baby boomers care for aging parents, an Illinois federal jury awarded $11.65 million to a hospital maintenance employee who claimed he was forced to choose between his job and caring for his ill parents. Even more shocking, this ruling, one of the largest FMLA awards ever, also held two supervisors personally liable, meaning money out of their own pockets.

The case: Chris Schultz, a 26-year employee, requested and was given intermittent leave under the Family and Medical Leave Act (FMLA) for several months to care for his seriously ill parents. During the leave, his supervisor created new performance standards that graded workers by the amount of work completed within a certain time period. Schultz couldn't possibly meet the standards while away. The hospital fired him for failing to make the cut.

Schultz shot back with an FMLA suit and won big. The kicker: In addition to the multimillion-dollar award against the company, the jury held two supervisors individually liable and ordered each to pay compensatory damages of $200,000 and punitive damages of $250,000. (Schultz v. Advocate Health and Hospitals Corp., N.D. Ill., 2002)

Advice: Don't count FMLA or other protected leave against an employee when measuring performance or granting benefits. You never want to imply that you're punishing employees who take legitimate time off.

This doesn't mean you can never fire a poor performer while on leave. But it's usually unwise unless you have a solid paper trail of work-performance problems stretching back before the worker asked for leave. (Ogborn v. UFCWU)

FMLA Compliance D

Finally, this case gives you an easy way to educate supervisors about FMLA. Use it to show how they can be held personally liable for FMLA mistakes, something that's not possible under many other federal employment laws.

Tip: To streamline compliance, have supervisors route all FMLA requests through one person at your company, so there's always oversight on applying policies fairly and legally.

FMLA leave: A Friday to Monday affair?

Employees are quickly learning that they don't have to take unpaid leave in large chunks under the Family and Medical Leave Act (FMLA). More are taking it in hours or days at a time.
So which day is FMLA leave taken the most? You guessed it: FMLA usage peaks on Mondays and Fridays, according to a group of manufacturers who charted FMLA leave for the National Association of Manufacturers. Another curiosity: They also found that FMLA leave spikes on the opening days of deer and trout seasons.
The lesson: Always require workers to obtain certification for absences, and exercise your right to seek a second or third medical opinion.