Question

The Top Five

FMLA Compliance Mistakes That Could Land You in Court

The Top Five FMLA Compliance Mistakes That Could Land You in Court

A slip of the tongue, a misplaced remark, the

wrong job assignment: managers make mistakes

every day. When the mistake involves FMLA, it can

cost your company big time in legal fees and land

you in court.

This report gives examples of common mistakes

your managers can make with FMLA decisions and

shows how to avoid them. Each section provides

examples of the problems your managers face with

FMLA regulations. Also included are lessons learned

that your managers can use to stop FMLA problems

before they start.

The Five FMLA Compliance Mistakes Line Managers Make covers these common slip ups:

1) Taking “adverse action” against employees

returning from FMLA leave

2) Saying the wrong things when employees

request FMLA leave

3) Assuming that minor ailments don’t quality

for FMLA leave

4) Disclosing a worker’s private medical

information

5) Penalizing employees for unforeseeable

FMLA leave

Mistake # 1 - Taking ‘adverse action’ against employees who have taken FMLA leave

When an employee returns from FMLA leave,

FMLA regulations state that the returning employee

has to go back to the same job or one of equal pay,

responsibility, and benefits. Here are two scenarios

that show the potential pitfalls with returning

employees and “adverse action”.

Sometimes it’s easy to reintegrate an employee

after a three- or six-month FMLA leave. The person

was a top performer and you were really suffering

while she was gone. You’re delighted to have her

back.

But that’s not always the case, is it? Sometimes

when workers return from extended leave, it’s hard to

work them back in. Sometimes you’d just as soon the

person never came back at all. It’s circumstances

such as these that lead to retaliation lawsuits. Let’s

look at a couple scenarios:

Scenario 1

Mary, the company’s accounts payables manager,

takes three months pregnancy leave. Jane, who

replaced Mary, ends up doing the job better. Dave,

her supervisor, is thinking, “Why did I put up with

Mary for so long? She was incompetent and I didn’t

even realize it. When Jane took over for her while

Mary was on leave, Jane completely reorganized the

department and it now runs like a clock. So what am

I supposed to do? Put Mary back in charge? That’s

not in the best interests of the company. I think I’ll

just put Mary in another role and hope she’s happy.”

That could be wishful thinking. In this case it

invited a retaliation lawsuit against the company.

Mary said: “When I left I had a position of authority

and responsibility; now they’ve put me out to pasture

in a low-level role. Sure, my pay is the same, but it’s

not a ‘similar or equivalent’ position. This is

retaliation and I’m going to sue.”

Could Mary win? Yes, in fact she did, because the

company had no evidence of poor performance prior

to her taking leave.

How the supervisor slipped up: Dave didn’t have a clear standard of excellence for Mary before she took

leave. She was doing a mediocre job and he didn’t

even know it. Mary had performance reviews stating

that she was meeting expectations all along; there

was no specific criticism of her work. Bottom line:

From the court’s perspective it appeared that at this

company the cost of having a baby is a demotion.

Remember, in court, companies almost always lose

“he said/she said” arguments. Employees get the

benefit of the doubt. No matter how sincere, or right,

Dave may have been, the lack of documentation left

the courts with no choice but to rule in Mary’s favor.

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The Top Five FMLA Compliance Mistakes That Could Land You in Court

Lesson learned for Managers

When a person takes FMLA leave, you’re

extremely vulnerable to a retaliation lawsuit if you

don’t return an employee to the same position she had

before. Or at least an equivalent one. Effectively

demoting Mary was dangerous and this company paid

the price.

How careful do you have to be with someone

returning from FMLA leave? Very. But the courts do

not want to dictate how you run your business. You

can fire or demote a person if you can prove that you

would have taken the same action regardless of

whether or not she took leave.

If Dave had documented Mary’s poor performance

in the months prior to her taking leave, he could very

likely have demoted her when she returned from

leave. Here’s an example where the company played

its cards right:

Scenario 2

Bill was out on leave for six months for a major

health crisis. When he returned to work he was still

not 100%. He couldn’t lift things as well as before.

He wasn’t as focused, and he tired easily. Fact is, he

couldn’t perform his old job at the level he used to,

and others in the department wouldn’t tolerate sub-par

performance.

Bill’s boss, Jackie, carefully documented Bill’s

inability to handle the basic tasks of the job. She

talked many times with Bill about his deficiencies

and finally offered to transfer him to another position

that was much less demanding. He refused to take it.

So Jackie fired him. Bill then sued for violation of his

FMLA rights.

Bill’s argument to the judge was that, “They got

angry because I took leave and now they’re punishing

me.” In many cases, that argument wins a lot of

sympathy in court. After all, the person may have

been on leave due to a life-threatening illnesses or the

loss of a loved one; then they come back to work and

get fired.

The company appears cold, heartless and

opportunistic.

But that doesn’t mean you can’t fire people after

they take leave. We’ve seen many cases where

companies got away with it, but only when they

proved that the person would have been fired even if

he hadn’t taken FMLA leave.

In the case described above, the company won.

Why? Because the courts will not force a company to

employ a person who can’t physically perform a job.

And Jackie very carefully documented that Bill

wasn’t up to snuff. In the end, the courts believed that

the company would have transferred Bill whether or

not he took leave.

That’s the standard you need to meet. Would you

have taken the “adverse action” anyway? If so,

you’ve got a strong case in court.

As a measure of good faith, it didn’t hurt that

Jackie offered Bill another position.

Mistake #2 - Saying the wrong things when employees request FMLA leave

Saying the wrong thing to an employee regarding

FMLA can be one of the quickest ways to a lawsuit.

Below are the two responses you shouldn’t use and

the correct response.

An employee comes to you and says she needs to

take FMLA leave because she has a back condition.

What should you say?

Correct: I’m sorry to hear you’re not feeling well. I suggest you go to the doctor and get yourself treated. And get me a note from your doctor, including a diagnosis. I’ll pass that on to the HR department.

Not correct: You know, your timing couldn’t be worse. Your colleagues are really counting on you right now. Are you sure you can’t stay on a few more days?

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The Top Five FMLA Compliance Mistakes That Could Land You in Court

Not correct: I saw you lifting boxes just yesterday. You didn’t seem to be having any problems. Are you sure you’re really ailing?

The last two responses set you up for a retaliation

lawsuit. The FMLA gives employees the right to

make their own health and well-being a higher

priority than the productivity goals of their company.

Sure, it’s very hard when an employee takes time off

during a crunch. It’s also true that you’ll occasionally

have a malingerer who will exaggerate a minor injury

and let you down.

But you’re in no position to decide whether an

illness is real or not. Only a doctor can do that. The

minute you, as a manager or supervisor, make

judgments about whether a person’s ailments are real

or not, you’ve given the employee ammunition in a

retaliation lawsuit should you ever take an adverse

action against the person.

The “correct” response is dispassionate,

compassionate and non-judgmental. It treats the

employee with dignity and respect. And it will never

come back to haunt you.

Mistake #3 - Assuming that ‘minor ailments’ don’t qualify for FMLA leave

Don’t make your own call about what constitutes

an illness? FMLA regulations have done that for you.

Surely a case of the flu wouldn’t qualify a worker

for FMLA leave, would it?

It could. The law says that a “serious health

condition” is one that requires three consecutive days,

72 hours or more, of leave, and at least two in-person

treatments by a health care professional. A number of

courts have ruled that an ailment like the flu can be

considered severe.

Scenario

Dave has the flu and stays out two days, then

returns to work on the third day. Two days later he

calls in sick again for another day. During the two

weeks that follow he comes in late and leaves work

early several times without providing notice. When

questioned, Dave says he was attending doctor’s

appointments to treat his condition. Dave’s boss,

Rick, thinks Dave is malingering and fires him for

violating the company’s strict attendance policy. Dave

sues, claiming that because he was out for three days,

he qualifies for FMLA leave and the company can’t

fire him.

Dave lost this case because his absences weren’t

consecutive, which means his illness didn’t qualify as

a “serious health condition.”

Lesson learned for Supervisors and Managers

Don’t let employees try and tell you that they

qualify for FMLA leave because their ailment

required three days of leave that weren’t consecutive.

Mistake #4 - Disclosing private medical information about an employee

Never disclose confidential medical information to

anyone but the HR department or your direct report in

the chain of command

Supervisors who handle FMLA leave requests learn

about employees’ medical problems. This information

is private and you’re expected to keep it that way.

Scenario

Ed had been Bruce’s manager for several years,

and it pained him to learn that Bruce was HIV-

positive. While Bruce was out on leave, Ed

mentioned Bruce’s condition to another senior

colleague, whom he expected to be discreet about it.

But the day Bruce returned to work he stormed into

Ed’s office and complained that “everyone in the

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The Top Five FMLA Compliance Mistakes That Could Land You in Court

company knows I’ve got AIDS.” Bruce ended up

suing the company for violating his privacy. He won.

How the supervisor slipped up

Pure and simple, Ed blabbed. The company tried to

argue that as a result of the news becoming public,

people rallied around Bruce and there wasn’t a single

incident of bias or negativity. The courts weren’t

impressed. The company also argued that Bruce

disclosed the information “voluntarily” on his request

for FMLA leave. But, it turned out, Ed had told him if

he didn’t put the reason for the leave on the request,

he’d be subject to discipline.

Lesson learned for Managers

Mum’s the word when it comes to any information

you may have about an employee’s medical or

psychological condition.

Mistake #5 - Not recognizing the nature of ‘unforeseeable leave’

Events happen in our lives that we can’t control.

But knowing the dividing line what is or isn’t

foreseeable with FMLA issues can help your

company avoid problems and lawsuits.

Most companies have policies that require

employees to give reasonable notice when they intend

to take family or medical leave. The FMLA

recognizes that this is only fair to employers, who

need to make adjustments when employees are absent.

Scenario 1 - foreseeable leave

Diane walks into your office and tells you she

intends to have elective surgery the next day, and that

she’ll be out of work for a week recovering. You

recognize that this is a violation of your company

policy, which requires two weeks’ advance notice for

foreseeable leave. Diane’s absence will throw your

entire department into chaos because you have no one

to replace her, and you’re angry. So you tell Diane

that if she takes the leave on such short notice, you’ll

have to fire her.

Can she sue you for FMLA retaliation? Sure, but

she probably won’t win. The courts will likely rule

that her leave was foreseeable and she violated your

policy. Barring other circumstances, she has no case.

Scenario 2 - unforeseeable leave

John gets in a car accident and suffers a head

injury. His wife calls you the same day to report

John’s condition and tells you he’ll likely be out at

least two weeks. She calls you continually during the

following days to report on John’s progress. In a case

like this John is fully protected by the FMLA.

Scenario 3 - ‘gray area’

Steve’s wife is a few days past her due date to

deliver her first child. So Steve calls Will, his

supervisor, to request FMLA leave to care for his

pregnant wife. Will says no. Steve misses nine

consecutive shifts and Will fires him. Steve sues the

company for denying his legitimate FMLA leave,

claiming that his leave was “unforeseeable” because

his wife was unexpectedly overdue and he couldn’t

predict when she was going to deliver. How do you

think the court ruled?

The court found that Steve violated the company’s

attendance policy and deserved to be fired. His wife,

though she was a couple weeks late delivering, had a

normal pregnancy with no complications. There was

no unforeseeable medical emergency. Steve was

trying to bend the rules.

Lesson learned for Managers

Knowing the dividing line is between “foreseeable”

and “unforeseeable” FMLA leave means the

difference between winning and losing in court.

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