An employee may have an interference claim as a result of being forced to take FMLA leave where the reason for the leave is not covered by the FMLA.
In Wysong v. Dow Chemical Co., No. 05-4197, 2007 Fed. App. 0402 (6th Cir. Oct. 1, 2007), the employee alleged that DOW violated her rights by forcing her to take 3 days of FMLA leave when she did not need to do so. Wysong did not believe that her neck pain constituted a "serious health condition" within the coverage of the FMLA.
The Sixth Circuit recognized an involuntary-leave claim as a type of interference claim. To state a viable interference claim, an employee must show both that she was not suffering from a "serious health condition" that precluded her from working during the time the employer forced her to take FMLA leave, and that the employee sought FMLA leave at a later date, and such leave was not available because the employee was wrongfully forced to use FMLA leave in the past. Critically, an involuntary-leave claim ripens only when FMLA leave is exhausted and, as a result, a request for FMLA-qualifying leave is subsequently denied.
Comment: The decision illustrates two important points. First, the FMLA permits an employer to force an employee to exhaust FMLA leave. Second, an employer that forces an employee to exhaust FMLA leave over an employee's objection runs the risk of having that decision challenged in a subsequent suit, at least where the employer denies FMLA leave or disciplines an employee for a subsequent FMLA-covered absence on the grounds that the employee has exhausted their 12-week FMLA leave entitlement and protections.
Employers must exercise great care to ensure that leave counted against an employee's 12-week FMLA leave entitlement is, in fact, covered by the FMLA. It is just as illegal to prematurely exhaust an employee's FMLA leave balance for leave that is not covered by the FMLA as it is to deny FMLA leave to an employee where the reason for leave is covered by the FMLA. To avoid expensive litigation and substantial monetary liability, employers must make the effort to determine that the reason for leave is covered by the FMLA in every instance. The alternative is to simply give up, grant all leave, and never issue discipline for attendance. Your call.