Posted in: Employment law, Legal and compliance, Management, Special Report
Warning to managers : Failing to maintain contact with an employee who’s on FMLA leave could be seen as evidence of a violation of the employee’s rights.
In a recent court case – Hofferica v. St. Mary Medical Center — a federal judge found an employer could be in violation of the Family and Medical Leave Act for failing to return an employee’s telephone calls while she was on FMLA leave. In fact, the judge said the employee’s boss may have “retaliated” against the employee for taking leave.
The charges by the employee, as laid out in court documents :
- The employee says she took extended FMLA leave for a verified illness and expected to return to work in two months.
- During that time, she and her husband regularly left her direct supervisor phone messages that contained updates on her medical condition and when she expected to return to work. The supervisor often failed to return the calls or acknowledge the messages.
- At the end of the two months, the employee left another message, asking for a leave extension of about a week. Again, the supervisor did not return the call.
- Shortly after that, the employer sent the employee a message informing her she’d been fired for exceeding the agreed-to amount of FMLA leave.
The employer asked the judge to dismiss the case on the grounds that there was no retaliation, and that the employee had been fired because she took extended leave without getting an OK from her boss. The judge refused, saying a jury could reasonably decide that there was retaliation because of “an antagonistic attitude toward the employee, particularly … after the employee initiated FMLA leave, and continued despite regular communications from the employee.” Now, the employer likely will either have to dish out big legal fees to defend itself or make an expensive settlement offer to the employee.
The case illustrates what bosses must do when employees are on FLMA leave: Maintain contact with those employees. The law states that employees are required to keep their employers informed, and the same requirement works in reverse – employer are obligated to stay in touch with employees. It’s not overkill to have a company policy laying out just how often bosses should make contact with employees on leave.
Related story: You decide: Retaliation for taking FMLA leave?