Legal Brief Challenges for Employers under FMLA Nancy DuBoise, MEA Employment Attorney During the years since its enactment in 1993, employers have frequently turned to employment attorneys and HR professionals for guidance in resolving complicated situations arising under the Family and Medical Leave Act (“FMLA”). Consistent with that trend, FMLA-related calls from members to our MEA Hotline occur on a regular, if not daily, basis. In a recent case, a member sought my legal advice regarding a particularly challenging FMLA situation. The member had an employee in a managerial position who suffered from a chronic condition which necessitated the need for extended leave. The employee was absent for a period of four continuous weeks in order to get the disease and related medication under control. After his initial four-week absence, the employee returned to work. Upon his return, the employee informed his supervisor that he would thereafter need to take additional intermittent leave for the same chronic condition. The employee’s need for leave was not foreseeable, and could not be planned or scheduled. Such intermittent leave was expected to range from a half-day to 2 or more days in duration. During his initial four-week absence, the employee tapped into his bank of accrued paid time off, receiving full pay for the entire period. The employee never requested FMLA leave, nor did the employer take steps to designate this period of prolonged absence as FMLA leave. As time went by, however, it became more and more difficult for the employer to conduct its business with one less manager. The employer considered several options and eventually concluded that its preferred course of action was to hire a new employee to permanently fill what had been the manager’s job, and to transfer the employee with the chronic condition 14
to another manager-level position (albeit a lower paying one) which could better accommodate the employee’s irregular attendance. The employer sought guidance on the following questions: 1. Whether FMLA permitted an employer to retroactively designate FMLA leave, and 2. Whether FMLA allowed an employer to permanently transfer an employee, who had not yet exhausted his 12 weeks of FMLA leave, to a job which was similar in level and responsibility but which was a lower-paying position. My advice to this employer could be characterized as a “good news, bad news” response. First, retroactive designation of FMLA leave is permissible under the law. Following the Supreme Court’s 2000 decision in the Ragsdale case, the courts have held that an employer may retroactively designate leave as FMLA, unless the employee can show that he/she has been prejudiced or harmed by such retroactive designation. If the employee can, for example, demonstrate that he/she would have returned to work sooner had he/she known that the leave was being applied against his/her 12-week annual maximum, then the employee may be entitled to additional leave beyond the 12 weeks allowed, due to the employer’s failure to timely designate the leave as FMLA. In contrast, the contemplated reassignment of the FMLA-eligible employee is a rather risky move. It is true that the FMLA regulations do allow an employer to temporarily transfer an employee to a position with equivalent pay and benefits that better accommodates recurring need for leave. That regulation www.MEAinfo.org
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applies, however, only when the need for leave is foreseeable, based on planned medical treatment. If the need for leave is not foreseeable (as is the case here), then the employer who reassigns (even temporarily) the employee who takes unplanned intermittent FMLA leave will risk being charged with violation of FMLA on a retaliation theory; i.e. that the employer retaliated against the employee for exercising his/her rights under FMLA. A more cautious approach would be for the employer to consider bringing in a part-time or temporary person to pick up the slack created by the absent employee. Alternatively, the employer could wait until the employee exhausted his 12 weeks of FMLA leave, and then reassign the employee. The caveat there is that when FMLA leave is taken intermittently, it could take quite a long time (much longer than 12 weeks) for the employee to exhaust his 12 weeks of allowable leave, and any action taken prematurely by the employer against this employee could lead to a complaint or a lawsuit alleging violation of FMLA.