Two FMLA Tips to Avoid Costly Lawsuits


Going to court to defend against being sued by an employee is expensive, even if you ultimately prevail.  To reduce the risk of being brought before a jury on claims of retaliation or interference under the Family and Medical Leave Act (FMLA), keep these two tips in mind. 

1. Prohibit your employee from performing any work while on FMLA leave

Asking your employee to perform any work while on FMLA leave constitutes illegal FMLA interference.  It is your responsibility to ensure that your employee is not responding to email or phone calls from managers or coworkers or going online to try and keep up with tasks they are missing while on leave. 

Train all managers on the FMLA so they are aware that they must go no-contact with the employee while they are on leave.  Managers can train their teams to refrain from making any requests of the employee.  Managers should inform employees taking leave that they will have no contact with the employee during the period of FMLA leave. Human Resources and management can explain to the employee that it is not because the company does not care, but because you are committed to providing the employee with the time they need to care for themselves, care for a family member, or bond with a child.

Direct the employee to record an out of office voicemail message and set up an automatic email reply stating that they will be out of the office and providing the name and contact information of someone who will be covering for the employee in their absence.  Disconnect the employee’s network access for the duration of the employee’s leave.

Do not contact the employee while the employee is on FMLA leave.  You may send a card or note expressing the company’s best wishes, but any communication beyond that is inadvisable.  Any contact that may cross the line into work-related activity could create liability not only under the FMLA, but also under the Fair Labor Standards Act (FLSA).

2. Do not use FMLA leave as a chance to terminate a problem employee

The FMLA requires employers to reinstate employees to the same or equivalent position upon the conclusion of FMLA leave.  The only exception is when a layoff occurs during the employee’s leave, and the employee would have been laid off regardless of whether the employee was on leave or not.  This is not a chance to restructure the employee’s team and eliminate their position or hire someone to fill the employee’s role while on leave and tell the employee that they cannot be reinstated because their position is no longer available.  There is no way to get around reinstatement. 

If an employee was a poor performer or engaged in unacceptable behavior prior to FMLA leave, the time to discipline the employee was at the time of the offense, not while they are on leave.  Your failure to take timely action is not a pass to terminate an employee while on FMLA leave. Refusing to reinstate the employee because of performance or conduct concerns is not compliant with the law. Reinstate the employee, monitor and document the employee’s conduct and/or performance, and gather detailed and specific information.  Terminating an employee in close proximity to the request for or use of FMLA leave appears highly suspect to a jury in a trial for FMLA interference or retaliation.  If you must terminate, make sure you have thorough documentation of your valid, non-retaliatory business reason for terminating the employee.

These are just two examples of how the FMLA can trip up employers and lead to six-figure settlements.  The law is complex, and the experienced employment law attorneys at myHRcounsel are here to answer your FMLA questions and guide you on the path to compliance.  Our attorney-drafted employee handbook, included with your ASK HR subscription, also contains a FMLA policy written in accordance with federal law if you are covered by the FMLA.

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