Who wants a Family Medical Leave Act (FMLA) interference lawsuit? Not me! Interference and retaliation are the two words you don’t want to hear in regards to FMLA. In addition to the employer being liable, HR, managers and supervisors can also have personal liability.
If you would like to learn more about FMLA and ADA please join me at one of my 2-Day FMLA, ADA and PDA Certificate Programs.
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2-Day FMLA, ADA and PDA Certificate Program (Starts 10-7-2019)
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The FMLA interference provision states that it is unlawful to interfere, deny or restrain employees on their right to take FMLA. So how do we handle situations like the following?
- An employee requested six months ago the week of July 4th off to go on vacation. The employee used some of the approved vacation days for “emergency vacation” and now requests the days off with no pay to take the week of July 4th off. You deny the vacation days and the employee responds “I guess I am going to have to get FMLA for my wife”……..
- An employee calls out for FMLA for her evening shift stating “FMLA, I have a migraine” but later on that same evening, she is posting in FB pictures of her attending a heavy metal rock concert……
- An employee calls out for FMLA Friday night and we know she suffers from anxiety and depression. The next day we see pictures of her having a very entertaining party at her home with some friends and we observe her in the pictures dancing and drinking…..
When we have allegations or suspicion that an employee is abusing FMLA or using FMLA for reasons that are not FMLA related, the employer has the right to investigate. The concern of interference will definitely exist if we handle the questioning incorrectly. For example, if I tell the employee in one of the scenarios above: “I can’t believe that we approved FMLA for you and you are commiting FMLA fraud” or “You are lying” or “I saw these postings in FB, and we are going to terminate you”, bla, bla, bla. I can almost guarantee you that you will end up with an interference claim.
Try this:
“I am confused, help me understand” – Trust me, it works! You are not accusing anyone or interfering with their FMLA rights, but courts agree that asking questions, investigating when we have allegations that somebody may be taking FMLA leave for a situation that is not an FMLA qualifying event is not interference.
“I am confused, help me understand; About four months ago you mentioned to us, that you were going to have to apply for FMLA when two vacation days that you had requested were denied, and it happened that you called out stating FMLA on those two same days”.
“I am confused, help me understand: We received a call from you last night stating FMLA-migraine, however an hour later, these pictures of you in a concert were brought to our attention”.
“I am confused, help me understand: Friday night, we received a call from you stating FMLA due to your depression and anxiety, however, later on, pictures of you and some friends dancing and drinking at your home were brought to our attention”.
The first and third scenarios are situations I personally had to deal with. With the first scenario, the employee actually ended up being terminated before July 4th for gross misconduct due to a different situation. Ouch! Be careful of what you wish for! The employee did not have to use FMLA.
On the second scenario, the employee was terminated for refusing to cooperate and answer the questions being asked pertaining to the alleged situation. Courts upheld the termination and the employer won the case.
In the third scenario, the employee responded to me: “I was so depressed and suffering of anxiety that the only way I could feel better was inviting some friends over to drink and dance”. I said “Ok, I see, thank you” and I left it alone because it is possible….. I guess, and I am not going to interfere with the employee’s right to take FMLA. If you can’t prove that the employee is not telling you the truth, STOP and just say “thank you”. If the employee was not being honest, at least she would now know that we are watching.
A simple practice to avoid ending with an FMLA interference claim!
Elga Lejarza-Penn, aPHR, PHR, SPHR, SHRM-CP, SHRM-SCP
If you would like to learn more about FMLA and ADA please join me at one of my 2-Day FMLA, ADA and PDA Certificate Programs.
Join me in Greenville, SC or via Interactive Live Stream / Webinar
2-Day FMLA, ADA and PDA Certificate Program (Starts 10-7-2019)
Join me in St Louis, MO or via Interactive Live Stream / Webinar
2-Day FMLA, ADA and PDA Certificate Program (Starts 11-7-2019)
