Court outlines how much ‘work’ those on FMLA leave can be asked to do
Your managers’ definition of “work” and a court’s definition of “work” may not belong in the same dictionary. As a result, you probably want to share this FMLA ruling with your managers.
How much is too much to ask of an employee out on FMLA leave? Would your managers consider a few phone calls “work” on an employee’s part?
A court just did in the case of Julie Vess, the former director of respiratory therapy at Regency Hospital in Toledo, OH.
After she was terminated from her position shortly after returning from FMLA leave, Vess sued Regency.
She claimed that while on leave, she was asked to conduct so much work over the phone that her FMLA rights were interfered with.
The court sided with her.
What was she asked to do?
While she was recovering from surgery to treat a knee injury that occurred in Regency’s parking lot, Vess claims she was asked to:
- field phone calls from therapists about scheduling
- field calls from her supervisor and replacement to discuss her work duties and responsibilities that needed to be covered in her absence (one of these calls lasted about an hour, Vess claims)
- complete continuing education training before she could return to work from FMLA leave (this took “a large amount of [her] day”)
- input data into a computer system (more than one hour), and
- submit evaluations on the respiratory therapists she supervised.
Fired for practicing ‘outside her scope’
Shortly after Vess returned from FMLA leave, she was terminated for practicing “outside her scope.”
According to the suit, two days after Vess returned to work, she cancelled a doctor’s written order for one patient and wrote an unauthorized order for another. Following an investigation into the incidents, she was fired.
In response, Vess sued for FMLA interference.
Regency tried to get her case thrown out, claiming Vess didn’t have any evidence to support her case.
Regency said allowing Vess to take nearly 13 weeks of FMLA leave, paying her workers’ compensation and reinstating her to the position she held prior to her surgery was all evidence that it didn’t interfere with her rights under the FMLA.
In addition, Regency even pointed out that the reason for her termination had nothing to do with the fact that she took FMLA leave.
But none of that mattered, according to the court. It ruled all Vess had to do for the case to proceed was present evidence that she’d been denied any benefit to which she should’ve been entitled under the law — like the right to not have to perform-work related tasks while on leave.
And the court ruled Vess’ statements about the work she had to do while on leave were enough to show she may have been denied FMLA benefits.
As a result, the case will go to trial — which stands to cost Regency a pretty penny in either a settlement or lengthy legal battle.
What you can ask employees to do?
Clearly, the problem here is Vess’ supervisor at Regency asked too much of her while she was on FMLA leave.
The court then shed some light on where managers and supervisors should draw the line.
In its ruling, the court said employers can ask workers out on FMLA leave to:
- pass along institutional knowledge to new staff
- provide computer passwords
- seek closure on completed assignments, and
- identify other employees to fill voids.
But ask anything other than that of workers on leave, and employers can end up in a costly legal battle.
Cite: Vess v. Select Medical Corp.
A previous version of this article ran on our sister website HR Benefits Alert.
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