FMLA 101: Don't Make an Employee Work During Leave. Just Don't.

FMLA 101: Don't Make an Employee Work During Leave. Just Don't.

 Really. It's a bad idea.

Like my youngest son using chopsticks and a fork at the same time to eat pho.

Ok, not that bad. But, definitely blogworthy. 

I read this case over the weekend about an employee who, while on maternity leave under the Family and Medical Leave Act, was required to work remotely during her leave. The employee was paid for the work she performed during her leave [an enhanced version of this opinion is available to lexis.com subscribers].

As is the case with the FMLA posts on this blog, the employee was later terminated following her return from maternity leave.

When the employee later sued for FMLA interference, the lower court dismissed her claims, by concluding that, because the employee was paid during her maternity leave, she incurred no legal damages. 

Paying an employee during leave does not foreclose an FMLA interference claim.

The appellate court reversed. It noted that "damages" under the FMLA not only includes compensation, benefits, and other monetary losses, but also "such equitable relief as may be appropriate, including employment, reinstatement, and promotion."

In this particular case, the appellate court opened the door to possible reinstatement or front pay in lieu, neither of which the lower court considered in dismissing the plaintiff's FMLA interference claims.

Don't make employees on FMLA work.

Folks, the FMLA permits employees to take job protected leave from work. FMLA is unpaid. FMLA-users don't get paid because they don't work during leave. It's easy like that.

While the FMLA creates an option for the employer or the employee to use paid time off concurrently with FMLA leave, it does not permit employers to force employees to work. Don't forget that. And train your managers and supervisors not to forget that either.

 This article was originally published on Eric B. Meyer's blog, The Employer Handbook.

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