How Not to Respond to a Request for FMLA

June 6, 2018 |

Any employer who has had to deal with the painful combination of a difficult employee and FMLA can relate to the feeling of frustration that inevitably accompanies such a pairing.  However, a recent case illustrates the importance of keeping those feelings in check.

Imagine this scenario: The employee provides his employer notice of his yearly vacation to Mexico. He then provides notice of a need to take FMLA for purposes of knee surgery before his vacation.  The employee takes the FMLA for the surgery as planned, and provides a medical certification putting him out of work for 6-8 weeks.  At the tail end of the FMLA, the employee takes his pre-planned vacation.

The employee returns to work as planned at the end of his vacation. Approximately a week later, the employee emails the company with what is perceived to be a “snippy” complaint about the the company’s salary continuation program and the fact that he received a small check instead of his salary while he was on FMLA.  That same day, the employee sends another email to HR reminding them that he will need additional medical leave (something his FMLA paperwork submitted months earlier had stated).

In the case of DaPrato v. Massachusetts Water Resources Authority, this was, apparently, enough to put the company over the edge.  Although the company had already been notified of the employee’s need for future leave, they were upset and reacted with “shock and offense at the idea of providing this employee with more FMLA leave.”

The company began an investigation into the employee’s FMLA leave, looking at surveillance footage of the employee driving while he was on leave; and eventually placed him on administrative leave, and then terminated his employment believing he behaved in manner inconsistent with his stated reason for leave.

The Court held that although the company investigated in good faith (it wrongly believed the employee’s doctor said he couldn’t walk at all and surveillance video found proof of him driving), it still violated the FMLA and retaliated against the employee for exercising his FMLA rights.

This case holds a couple of key lessons for employers:

  1. Review FMLA paperwork carefully, and do not read it with an eye for denying leave.  Here, the employer’s actions were based on one doctor’s note, although their reading of it was contradicted by the FMLA form that was returned.  The court acknowledged that the employer acted in good faith – they legitimately believed this employee was walking around on his knee when the doctor said he couldn’t put any weight on it, but that good faith belief did not shield them from an FMLA retaliation finding.
  2. No matter how annoying you find the employee, it is important to administer all FMLA in an unbiased way.  It is not worth a claim of FMLA retaliation and interference.



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