Employers may engage in a variety of improper actions when it comes to your requesting, using, or returning from leave to which you are entitled under the Family and Medical Leave Act. This misconduct can range from erecting onerous and unnecessary documentation requirements to counting your FMLA leave against for purposes of punitive “occurrence-based” attendance policies, just to name two. If you’ve encountered an employer making things needlessly difficult or otherwise punishing you for seeking or using FMLA leave, that potentially counts as interference, which is against the law. An experienced FMLA interference lawyer can help you assess how best to proceed based on the facts of your situation.
That issue of FMLA interference came up once again in a recent case from the federal courts. The employee, J.P., worked at a paper mill that had an occurrence-based attendance policy.
From December 2017 to August 2018, J.P. took three periods of FMLA leave. That last period ended on August 5. On August 6, J.P. returned to work. The next day, however, an operations manager told him to leave and to return with a “medical release” from his physician. J.P. did as instructed and, as a result, the employer counted his leaving work early on August 7 as a separate and additional occurrence.
That occurrence on August 7 triggered a “guidance committee” meeting and a recommendation that the company fire J.P. Without the August 7 occurrence, the committee would not have met and J.P. wouldn’t have been fired, according to one of his supervisors.
J.P. sued for FMLA interference.
The key upon which the case turned was the medical release request. If the request was proper, then the assessment of the “occurrence” and subsequent termination were permissible. If the request was improper, then everything that came after potentially represented illegal FMLA interference.
If J.P.’s FMLA leave was intermittent, the employer clearly was not allowed to demand the release and the demand represented possible interference. The federal FMLA regulations say that intermittent leave lasts no more than “several” days, but do not specify exactly what number “several” equates to. There is no black-and-white statement that a 16-day leave cannot be an instance of intermittent leave.
Furthermore, the appeals court pointed out that, even if the leave counted as continuous, the employer arguably still violated the law. An employer that desires medical certification from a worker’s doctor must give the employee advance notice. J.P. never got that. J.P.’s case raised the distinctly possible conclusion that the employer “waited for [J.P.] to show up to work on August 7 before letting him know of the certification requirement, made [him] leave work for failing to meet the requirement, and then consequently terminated [him] because he left.”
An Example of Excessive Demands as FMLA Interference from the 11th Circuit
The 11th Circuit Court of Appeals, whose rulings directly control federal FMLA cases in Georgia, Florida, and Alabama, addressed a somewhat similar FMLA dispute in 2017. That case involved a worker whose FMLA leave undisputedly qualified as intermittent leave. The worker applied for FMLA leave in 2013 to care for her elderly parents and submitted the necessary certification to go with it.
After the worker’s mother became seriously ill in 2014, the employee sought additional leave. The employer demanded an “updated medical certification,” along with numerous additional documents. The extent of the demand exceeded what the employer needed to decide if the worker actually needed leave, thus raising the possible conclusion that the employer was making the FMLA leave process excessively difficult to discourage the worker from seeking leave, which would represent impermissible interference.
The law forbids employers from interfering with the employment rights that the FMLA gives to employees. If you are someone who has encountered FMLA interference or FMLA-related retaliation, or you have questions about your FMLA rights, get in touch with the law firm of Parks, Chesin & Walbert. Our knowledgeable Atlanta FMLA interference attorneys are here to provide you with the thoughtful answers, sound advice, and aggressive advocacy you deserve. Contact us through this website or at 404-873-8048 to schedule a consultation.