No Pressure, Really

When employees request and take leave under the Family and Medical Leave Act, employers need to leave them be. Putting pressure on employees not to take leave or to cut it short is wrong and violates the law.

 The Family and Medical Leave Act (FMLA) (29 USC §§2601-2654) provides for employee leave from work for the birth or adoption of a child, to care for a seriously ill spouse, parent, or child, because of the employee’s own serious health condition, or because of “any qualifying exigency” arising out a family member’s active military duty.

These benefits are protected by some very strong anti-retaliation protections. Most fundamentally, it stops employers from firing an employee who takes a FMLA leave and prohibits employers from discriminating against employees who wish to exercise their rights under the FMLA. 29 USC §2615. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions. 29 CFR §825.220(c).

Employers are also prohibited from interfering with an employee’s leave under the FMLA. 29 CFR §825.220(c). This includes pushing an employee to cut short his or her leave and return back to work sooner.  As reported in the ABA Journal, an employer in Arkansas may have done just that when it contacted its employee weekly to ask when she would return to work after undergoing back surgery. For fear of losing her job while at home recovering, the employee returned to work a week early. In her suit against her employer, the employee claimed that it deprived her of the FMLA’s full benefits by pressuring her to return to work early. The court dismissed the employer’s summary judgment motion, finding that a jury should be presented with the employee’s FMLA interference claim.

Here’s the bottom line:  Employers cannot interfere with, restrain, or deny the exercise of any right granted by the FMLA – including anything from overt retaliation to gentle pressure.

For comprehensive coverage of the FMLA, check out CEB’s Advising California Employers and Employees, chap 6. On issues involved in claimed violations of the FMLA, go to CEB’s Wrongful Employment Termination Practice. Employee leaves under the FMLA and many other family related issues will be discussed in CEB’s upcoming program Family Responsibilities Discrimination in a Changing Workplace, available On Demand.

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