Labor & Employment Law

Grant of Leave Was Illusory Where Employee Was Required to Perform Full Duties While on Intermittent FMLA Leave

By Harvey Randall, Esq.

Grant of Leave Was Illusory Where Employee Was Required to Perform Full Duties While on Intermittent FMLA Leave
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2008. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

In reversing the award of summary judgment to the employer, the Seventh Circuit in Lewis v. School District #70, No. 06-4435, 2008 U.S. App. LEXIS 8248 (7th Cir. April 17, 2008) cited as evidence of retaliation the School's expectation that Lewis complete all of the duties of her full-time bookkeeping position while she was working on a part-time basis while she used intermittent FMLA leave. Because she did not meet that expectation, the School permanently removed her from her position.

The court found that a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory.

The School, the court noted, had numerous options consistent with the mandates of the FMLA that did not require Lewis to perform her full-time duties while working part-time. The School could have: (1) shifted the work to other employees during the time Lewis was taking intermittent FMLA leave; (2) hired part-time help; or (3) transferred her to another position temporarily.

By holding Lewis to the unrealistic expectation that she should accomplish satisfactorily all of her duties of the bookkeeper position during her period of FMLA-protected intermittent leave, a jury, the court concluded, could find that the School violated the FMLA when it decided to permanently remove her to another position.

Comment: An employee on intermittent FMLA leave is required to meet the reasonable expectations of his or her position while at work. Unrealistic expectations of what an employee can accomplish during the intermittent or reduced leave schedule may be evidence of retaliation for exercising FMLA leave rights sufficient, at least, to defeat an employer's s motion for summary judgment. Even if a jury ultimately decides in favor of the employer, the inability to secure summary judgment makes the case much more expensive for an employer.

To ensure FMLA compliance, employers should set realistic performance expectations during an employee's use of FMLA leave on an intermittent or reduced leave schedule.

Full post as published by New York Public Personnel Law on April 23, 2008 (boomark / email).