Managing Employees and
The Family Medical Leave Act

Under the Family and Medical Leave Act (FMLA) an employee who has worked 1250 hours within the past year may take up to 12 weeks of unpaid leave to recover from a serious health condition or to care for a family member with a similar condition. The FMLA allows employees to take intermittent leave when an employee demonstrates that short periods of leave are medically necessary.

Following FMLA leave, an employee must return to the job held when the employer approved the leave or to an equivalent position.

The FMLA also prohibits retaliation against an employee who takes leave, but does not guarantee a job. An employer should treat an employee who takes FMLA leave as if he or she had not taken leave. For example, if the employer reduces its workforce or an employer has scheduled an employee to be terminated, transferred or demoted prior to his or her leave, the FMLA offers no protection against the scheduled action.

The more frustrating aspects of the FMLA, from an employer's perspective, are managing intermittent leaves of absence and discipline of employees who have taken time. Supervisors often believe they have no control over the scheduling of intermittent leave, or fear that any employment action involving an employee who has exercised rights under the FMLA will create liability for themselves and their employer. But the FMLA does allow some flexibility without creating liability.

Managing Intermittent Leave

The FMLA provides supervisors the following tools to manage intermittent leaves.

An employee must present medical documentation that his/her medical condition can best be accommodated through intermittent leave.

• As part of its medical certification form, an employer may request the projected number and dates of treatments, and the projected period of recovery following a treatment. The employer may also ask whether the treatments may be scheduled during off-work or off-peak hours.
  
  
• An employer may require an employee to consult with his or her supervisor to schedule intermittent leave. An employee must engage in a discussion to reach an agreeable treatment schedule, subject to a health care provider's approval.
  
  
• An employer may request re-certification of an employee's need for intermittent leave every 30 days. An employee must pay the cost of obtaining a medical certification.
  
  
• To lessen the disruption caused by periodic absences, an employer may transfer an employee who requires intermittent leave to an alternate position provided the employee's pay and benefits remain the same.

Discipline or Termination of Employees on FMLA Leave

Although the FMLA prohibits employers from taking "adverse employment actions" such as discipline or termination against employees when they exercise leave rights, employers may discipline or terminate employees for reasons unrelated to FMLA leave. Under Department of Labor rules, an employer must prove that it would have disciplined or terminated an employee regardless of the request for, or use of, FMLA leave. An employer must explain why it didn't act before the employee exercised FMLA rights.

Newly discovered performance issues often justify discipline. When others assume the duties of an employee who has taken extended leave, they sometimes discover their colleague hasn't performed critical duties. Courts have held that the discovery of significant performance issues justifies termination of an employee while on leave.

What if an employee under-performed before FMLA leave or the discovery during leave involves poor performance but doesn't involve duties critical to the operation of the department? In that case, a supervisor should counsel the employee about the performance issues and if the documented pattern continues, disciplinary action may follow. An employer can easily defend a claim of retaliation by showing that it documented performance problems and discussed the problems before the employee exercised FMLA rights. Conversely, if an employee underperformed before FMLA leave and the supervisor documents the problems only after the employee has requested leave, a court may find that resulting discipline is retaliatory.

Published in the Summer 2005 Edition of In Brief