FMLA FAQ: Can an Employer Require an Employee to Make Up Time Taken as FMLA Leave?

Posted by Jeff Nowak on April 05, 2012

Q:  We have an employee who works four days per week.  He regularly calls off work one day every other week due to his chronic bad back.  Can we require that he "make up" his day off later in the workweek?

A:  The FMLA regulations do not give us any clear guidance as to whether an employer can maintain a policy that requires or even encourages employees to "make up" FMLA leave.  However, the regulations (and several court decisions) make two general principles very clear: 1) employers cannot engage in conduct that discourages or otherwise "chills" an employee from requesting or taking FMLA leave; and 2) employers must provide privileges and benefits to employees who take FMLA leave in the same manner they offer benefits to those on non-FMLA leave.

Let me be blunt: requiring employees to make up FMLA leave is fraught with problems and invites litigation, as a court would very likely find that such a policy causes employees to refrain from requesting FMLA leave (because they are forced to make up the time on a different day).  I am reminded of a few cases that generally highlight the point: 

  • A few years back, we highlighted McFadden v. Ballard Spahr, a case in which the plaintiff claimed her employer misinformed her of the amount of FMLA leave she was entitled to, and then harassed her for taking leave.  The court found that, where an employee can demonstrate that she would have taken more available FMLA leave had the employer not engaged in this conduct, she could assert an FMLA interference claim.
  • Take a look Grosso v. Fed Ex. Corp. (pdf) as well.  In that case, Grasso was provided all the FMLA leave he requested to care for his ailing father.  However, he also claimed that Fed Ex told him he was taking too much FMLA leave and that he needed to return to work.  The Court found that Grosso had provided enough evidence to show that Fed Ex had attempted to discourage the employee's use of FMLA leave and allowed the claim to go to a jury.

In the context of a policy or practice requiring employees to make up time taken as FMLA leave, these cases above give me some pause.  Can you picture this scenario: 

Employee: I'm calling off today because of my chronic bad back.  So, I'll take it as an FMLA day.

Boss: Well, Sonny, that's fine, but you know we like people who take these one-off FMLA leaves to make up the time later in the week.  It's all good, cause then you'll get your full pay for the week.  Now, tell me, what day can you come in later this week?

Employee:  Uh...well, I dunno.  I would need to find child care for my child who has uromysitisis poisoning.  Ummm, well, it's probably too much trouble.  On second thought, I'll just come into work today.  I'll be there by the start of the shift. 

Boss: Sounds good, Sonny.  Good decision, I say.  See you in a few.

Wham!  In seconds, the boss -- who was just following Company policy -- has created an FMLA interference claim.  Even if the employee had taken FMLA leave and agreed to make it up later in the week, might we have a situation like McFadden or Grosso above, in which the employee could show that the exchange between the boss and him above had a chilling effect and caused him to refrain from requesting FMLA leave in the future?  I think the employee has a good argument.

With this guidance in mind, for those employers out there that still maintain a policy that allows employees to make-up time to replace lost wages (as a result of unpaid FMLA leave), its absence/make-up policy should clearly identify that: 1) scheduled work missed as a result of FMLA leave will still be counted towards the employee’s FMLA allotment, and make-up time is allowed to compensate for lost wages (again, in the event FMLA leave was unpaid); and 2) make-up time is not required.  Employers should consider prohibiting make-up time if the FMLA leave ran concurrently with paid leave, such as sick or vacation time.

On the flip side, if an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privileges. Keep in mind one of the two principles I outlined at the outset: the FMLA regulations require employers to provide benefits to employees on FMLA leave in the same manner offered to those on non-FMLA leave.

What's your practice in this situation?  I welcome your feedback on whether a make-up policy has worked for you.

FMLA FAQ: Does an Employer Violate the FMLA When an Employee Answers E-Mail or Telephone Calls While on Leave?

Posted by Jeff Nowak on March 05, 2012

ygmlogo.gifQ:  An employee who recently returned from FMLA leave claims that a portion of his leave of absence should not count against his FMLA entitlement because he responded to a number of work-related e-mails and telephone calls while he was out.  Can we still count this time as FMLA leave?

A:  I have fielded this question from several employers lately, so I figured I would tackle it head on.  In this situation, what an employer is worried about is FMLA "interference" -- the idea that the employer is denying the employee FMLA benefits to which he otherwise was entitled. 

In a nutshell, an employee is unlikely to establish an FMLA interference claim simply because he responds to some e-mail and a few phone calls during leave.

Generally, courts find that fielding occasional calls and e-mails that relate to your job while on leave is a "professional courtesy" that does not interfere with FMLA leave.  Therefore, a few  work-related communications likely will not constitute interference with an employee's FMLA rights.  As one federal court in New York put it, when an employee is passing on "institutional knowledge" or providing closure on open assignments, employers do not violate the FMLA. 

What about the employee who is answering e-mails and calls without the boss' knowledge?  Generally good news for employers here, too.  Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too fatigued to do so.  Soehner v. Time Warner Cable, Inc.

Insights for Employers

1.  There are no hard and fast rules about contact between employee and employer during FMLA leave.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions (where they can find the company business plans, for example) or to wrap up a job the absent employee was working on.  Also, as evidenced in the Soehner case above, it is unlikely to be an FMLA violation where the employee is working behind the boss's back.

Tread carefully here, though.  If your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e-mails and/or calls), the best course to reduce the risk of any FMLA (or FLSA) liability is to put an end to the work. 

2.  Watch out for possible FLSA issues where an employee performs work while on leave.  For best practices on the wage and hour side, see my colleague Bill Pokorny's post on our Wage and Hour blog here.

FMLA FAQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

Posted by Jeff Nowak on January 19, 2012

woman_pregnant_child_stomach_brother_sister.jpgQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

A.  It depends, particularly after a federal appellate court handed down a ruling on this very issue last week.

The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities in Florida.  In June 2009, Pereda informed her employer that she was pregnant and would need FMLA leave after the birth of her child in November 2009.  However, in September 2009, about 11 months after her hire, Brookdale terminated Pereda's employment.

Pereda thereafter filed suit, claiming that the employer violated the Family and Medical Leave Act when it: 1) denied her FMLA leave (interference); and 2) terminated her for exercising her right to take FMLA leave (retaliation). 

The Court grappled with whether an employee who is not yet eligible for leave (because she had not worked for Brookdale for the requisite 12 months) could advance an FMLA interference claim.  For the Court, the answer was quite clear: Yes, she can.  In answering the question, the Court first looked to the regulation regarding eligibility: 

"The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start." 29 C.F.R. § 825.110(d).  

So, the answer is easy enough: when assessing an employee's eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin.  If an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,” the employee could advance an FMLA interference claim.  Pereda v. Brookdale Senior Living Communities, Inc. 

Insights for Employers

There are several takeaways for employers on this issue: 

  1. Keep in mind that the FMLA requires a 30-day notice for foreseeable leave.  This is particularly true for the birth of a child.  An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.
  2. A gentle reminder -- don't treat your employee differently after the leave request has been made.  According to Pereda above, she claims to have been harassed, disciplined for attending prenatal appointments (an FMLA no-no!), and inappropriately placed on a performance improvement plan.  Of course, an employer can and should insist that their employees meet legitimate performance expectations, but retaliating against the employee after she requests leave not only violates the FMLA, it results in a dejected employee who will have no desire to work for you again.
  3. Note: If an employer grants leave before the employee becomes eligible under the FMLA, any leave taken in the first year cannot be counted against the employee's FMLA allotment.  See my prior post on this subject.
  4. Eric Meyer of The Employer Handbook points out several other lessons from Pereda case that are worth reviewing.