Employees can choose when not to use FMLA

In Escriba v. Poultry Farms the court rules “there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA.”

This is clearly counter to what previous guidance has always provided- designate an absence as FMLA leave any time an absence is taken for an FMLA-qualifying reason. This latest development could conceivably allow employees to double-dip by allowing them to take paid leave and then FMLA leave, instead of running the clock on both at the same time, as is standard procedure today.

LEAVE your employees alone when absent or on leave:

in Vess vs Select Medical, the employer was in constant communication with their on-leave employee, even having them do work.   This included phone calls from supervisors, scheduling, , inputting data and even doing training.  The court rules in the employees favor and provides a narrow scope of what can be required of employees on leave:

  • pass along institutional knowledge to new staff
  • provide computer passwords
  • seek closure on completed assignments, and
  • identify other employees to fill voids

Outside of these areas, leave your employee alone – when on sick or FMLA leave.

How FMLA and ADA overlap

in Attiobge-Tay v. Southeast Rolling Hills LLC. the court ruled that an employer was justified in terminating an employee who returned from FMLA unable to do their job physically.  The employee requested additional leave, and was denied.  Lifting was an essential part of the employees job.