Recently, the media has reported on efforts to enact paid medical leave for employees working in the United States. The legislative proposals are for 4 weeks of paid leave. But, the current standard for employers is unpaid leave. The Family and Medical Leave Act (“FMLA”) is a federal law that permits an eligible employee to take 12 weeks of unpaid leave during any 12-month period for a serious health condition. To be eligible, an employee must have worked for the employer over a twelve (12) period for at least 1,250 hours. To be covered under the FMLA, the employer must have at least 50 employees over 20 or more workweeks. The FMLA protects an employee’s job for a 12-week period. However, employers sometimes run afoul of the law by interfering with an employee’s rights to this protected leave. To make a claim for FMLA interference, an employee must show that (1) s/he is an eligible employee under the FMLA; (2) the employer is covered under the FMLA; an employer as defined in the FMLA; (3) s/he was entitled to take FMLA leave (4) s/he gave notice to the employer of the intention to take FMLA leave; and (5) s/he was denied benefits provided under FMLA. But, what constitutes interference with Family and Medical Leave rights? Here are some examples employer conduct that courts have found to interfere with an employee’s FMLA leave:
- Failing to provide an employee with adequate notice of procedures for requesting FMLA leave
- Requiring an employee to provide more notice than is required for using FMLA leave (Note - only 30 days-notice is required when the need for leave is foreseeable)
- Asking an employee to delay the start of FMLA leave
- Discouraging an employee from taking FMLA leave
- Prohibiting an employee from taking FMLA leave
- Requiring an employee to report to the office for training or other work functions while on FMLA
- Reducing an employee’s work hours to prevent an employee from being eligible for FMLA leave
- Requiring an employee to report to the office to bring work files while on FMLA leave.
- Requiring an employee to engage in significant work activities while on FMLA leave. (Note – an employer’s minimal work-related contact of the employee while on FMLA has been held to not interfere with an employee’s FMLA rights. When the purpose of contacting an employee on FMLA leave is limited to the scope of passing on institutional knowledge to new staff, providing closure on completed assignments, requesting passwords, or obtaining basic client information, courts have held that an employee’s FMLA rights are not interfered with.)
Courts have held that an employer’s motive plays no role in a FMLA interference claim. Proof of intent is not necessary to find an employer liable for interfering with an employee’s FMLA rights. More information on FMLA claims is available from the Law Firm of Morgan Rooks PC and the US Department of Labor.