Key to remember: Managers who fail to observe an employee’s FMLA leave can put the company at risk of a claim.

Applies to: All public employers and private employers with 50 or more employees. 

Impact to customers: A cautionary tale about not effectively training managers on the FMLA.

Possible impact to JJK products/services: This is a news item that will be on the Leave Manager.

Rhonda was diagnosed with a condition that caused chronic fatigue. As a result of this, she requested that she not be scheduled to work more than eight hours per day, and five days per week, for a total of no more than 40 hours per week. She provided a requested FMLA certification supporting her need for such a schedule, which was subsequentially approved.

In response, Gertrude, Rhonda’s manager, gave Rhonda a document indicating that her schedule would be a minimum of 40 hours, 8 hours per day at 5 days per week, and any violations would be subject to a performance review. The document, however, listed time ranges on some dates that exceeded 8 hours for the day.

Rhonda asked about being scheduled for too many hours under her FMLA, and Gertrude took her to the HR director, who also indicated that Rhonda had to work the hours listed or face potential discipline.

As a result, Rhonda tried to work her assigned hours, even beyond 8 hours per day. One day, however, she asked to leave after only 8 hours due to her condition. She was told that she could not leave; she had to stay to do training. Rhonda, however, did leave. She didn’t go to work the following day, and the day after that, she resigned.

Rhonda then sued, claiming that the employer interfered with her FMLA rights in violation. The employer argued that they did not deny her FMLA rights and, therefore, did not interfere with those rights.

The court indicated that interference isn’t limited to denial of leave. Interference also encompasses using the taking of FMLA leave as a negative factor in employment actions and discouraging an employee from using such leave.

Requiring Rhonda to work more than 8 hours that day could easily be seen as discouraging her from taking leave; therefore, the employer interfered with her FMLA rights. The case was allowed to advance.

Often, managers and supervisors are not indoctrinated to even the basics of the FMLA, including that FMLA leave is a right; that the FMLA is an employee entitlement law, and interfering with those rights can risk a claim. Managers and supervisors, and even some HR directors are also not familiar with what interference can look like. In this case, the employer undermined the employee’s reduced schedule, resulting in having so spend resources defending its actions.

Hudak v. Brandy et al., Northern District of Indiana, No. 3:18-cv-932, October 27, 2020