The FMLA Blog

Policy Limits on Vacation Travel During FMLA Leave Upheld

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegron filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgement to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Comment: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.     

Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf

 

   

 

Weekly Calls to Employee on FMLA Leave To Ask When They Would Return to Work Interfered with Employee's FMLA Rights

In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave. The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.  The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.  The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave."  29 CFR 825.220(b).

Comment:  The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights.  The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).  

From the decision, it does not appear that the employer argued the point.  Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference.  For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.  

Unfortunately, it is not clear from the Terilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports.  If the duration of approved leave is unknown weekly status reports would appear to be reasonable. 

The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment.  I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances.  Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.    

 

 

Employee Entitled to Maintain Lawsuit for Interference with FMLA Rights Even though Employer Granted All FMLA Leave Requested

Vanessa McFadden worked as a legal secretary for a partner in the Ballard Spahr law firm.  In 2002, she asked for and was granted FMLA leave to care for her husband suffering from cancer.  She alleges that Ballard Spahr interfered with her ability to take additional leave by misinforming her about her entitlement and by harassing her for taking too much time off.  As a result, she took less time off then she was entitled to take, and paid her sister to care for her husband when she did not take off work.  In 2003, McFadden began to have her own health problems.  After exhausting all available paid and unpaid leave, she was terminated when she indicated that she could not perform the essential functions of her secretarial position on her return to work. She sued, alleging, among other claims, interference with her FMLA rights.  The trial court awarded summary judgment to Ballard Spahr.  McFadden appealed to the D.C. Circuit. 

McFadden claimed that Ballard Spahr interfered with her FMLA rights by misinforming her about the amount of leave to which she was entitled and by pressuring her not to take leave.  The Court found that McFadden could establish interference even though she was never denied leave by demonstrating that her employer "interfered with" her exercise of FMLA rights and that she suffered monetary losses as a result.  By paying her sister to care for her husband when she was lead to believe that she could not take time off to care for him herself, McFadden could, the court found, demonstrate that she suffered monetary damages as a result, allegedly, of the interference by Ballard Spahr.   The Federal Circuit reversed the award of summary judgment and remanded the matter back to the trial court for further proceedings.

Comment:    Many courts have awarded summary judgment to an employer where the the employee was granted all the leave they requested.   The theory being that an employer who grants all leave requested does not interfere with the employee's right to leave.  In McFadden, the court carved out an exception to that general principal where the employee can demonstrate that they would have taken more available FMLA leave had the employer either not misinformed the employee of the amount of leave available, and/or had not chilled the employee's willingness to take additional leave through harassing comments.  McFadden satisfied the damages requirement by demonstrating that she paid someone else to care for her seriously ill husband during times when she would have taken leave but refrained due to the interference by her employer.  

McFadden v. Ballard Spahr Andrews Ingersoll LLP, NO. 08-7140 (Fed. Cir. June 29, 2010)

6-Month Need for Intermittent Leave Rendered Employee Unfit for Duty

Charlene Wisbey was employed b y the City of Lincoln, Nebraska as an emergency dispatcher.  The position required Wisbey to receive calls for emergency services and dispatch emergency service units on a regular basis.  Because of the potential life-saving aspect of her position, the City Expected Wisbey to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations. 

During January-February, Wisbey used a significant amount of sick leave for an upper respiratory infection, for which she received a letter of warning.  To avoid further discipline, the City recommended that Wisbey apply for intermittent FMLA leave, which she did.  The medical certification supporting her request for intermittent FMLA leave cited recurring cycles of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration.  It also stated that Wisbey was unable to perform the essential functions of her job  The certification concluded that Wisbey would need to take time off intermittently over the next 6 months or longer. 

Concerned about her ability to perform her job as an emergency dispatcher, the City directed Wisbey to undergo a fitness-for-duty exam (FFD), which she did.  The FFD concluded that Wisbey suffered from chronic relapsing depression which intermittently interfered wit her ability to function at full capacity at work, and that she was not fit for duty, especially regarding her ability to concentrate and her ongoing propensity to miss work.  The City terminated Wisbey as unfit for duty.  Wisbey filed suit alleging violations of the ADA and FMLA.

With respect to the ADA, the Court rejected Wisbey's argument that the City did not have a legitimate, non-discriminatory business necessity to require her to submit to the FFD. Citing a decision of the Second Circuit in Gajda v. Manhattan & Bronx Surface Transit Operating Autho., 396 F.3d 187 (2d Cir. 2005), the Eighth Circuit agreed that representations made in an employee's FMLA medical certification that the employee is unable to perform the functions of his or her position may serve as a legitimate, non-discriminatory basis for employer to require an FFD. 

With respect to the FMLA, the Court rejected Wisbey's claim that the City interfered with her FMLA rights, noting that she was never denied FMLA leave.  Significantly, quoting prior Eighth Circuit opinions, the Court noted that the FMLA "does not provide leave for leave's sake, but instead provides leave with an expectation an employee will return to work after the leave ends," Throneberry v. McGhee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005), and that "the FMLA doe snot provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment's notice for the rest of her career.  On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement."  Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002). 

Because Wisbey requested "intermittent leave" for "six months or longer," the Court concluded that she did not have a right to FMLA leave.  Without the right to FMLA leave, the City "could not have interfered with Wisbey's rights under the FMLA."  The Court also rejected Wisbey's FMLA retaliation claim, finding that the decision to terminate her was not casually related to her request for FMLA leave a month before, but was due to the results of the FFD.

Comment:  Long-term intermittent absences with little predictability or notice are the bane of employers who need employees present to get the work done.  Of course, from the perspective of the employee who needs intermittent leave due to their own serious health condition or to care for a family member with a serious health condition, this is why the FMLA exits- to protect the employee from having to make a choice between their job and caring for their own or a family members medical needs.

For my money, the Eighth Circuit went too far by stating that an employee who needs intermittent FMLA leave for "6 months or more" somehow forfeits the right to take FMLA leave. The statement is flat out wrong.  If an eligible employee meets all of the criteria, the FMLA affords the employee the right to take up to 12 weeks of intermittent FMLA leave for their own serious health condition, or the serious health condition of a covered family member, over the course of a 12-month leave year.  Except perhaps in the Eighth Circuit, an employer that denied an eligible employee intermittent FMLA leave after six months - even though they have a certification stating that they needed intermittent leave for more than six months - relying on Wisbey would, in my estimation, interfere with that employee's FMLA rights.  That could cost the employer big time in an FMLA interference suit.

What employers should take away from Wisbey is that an employee who needs intermittent FMLA leave long-term or forever may not be qualified for their position.  Obviously, this will depend on the job duties of the position, including whether regular and predictable attendance is required.  If they are not fit for the position because of their FMLA-covered condition, employers do not have to continue to employ the individual.  The fact that, if employed, the individual would have the right to take intermittent FMLA leave is not controlling.  Think of it this way: the FMLA entitles an employee to leave.  If the same FMLA covered-condition that entitles an employee to take leave also interferes with the employees ability to adequately perform their job when they are at work, the FMLA does not protect the employee from discipline for poor performance for the job they did when at work.    

Employers would be well-advised to proceed with caution in applying Wisbey.  Other courts may be less quick to find that an employee needing intermittent FMLA leave is unfit for duty and, therefore, may be terminated -particularly where the employee has not exhausted his or her annual entitlement to FMLA leave.

The decision is available at http://www.ca8.uscourts.gov/opns/opFrame.html

  

Adverse References to FMLA Leave Usage Sufficient to Defeat Employer's Claim that it Terminated Employee for Performance Deficiences, Not Exercise of FMLA Rights

Dorthy Goelzer was a long term employee of Sheboygan County, Wisconsin, serving as the administrative assistant to the County Administrative Coordinator, Adam Payne.  She consistently received good performance evaluations.  In 2002 Goelzer began to have significant health issues necessitating the use of FMLA leave, which was approved.  All told she used 312 hours of sick leave in 2002, the equivalent of nearly 39 days.  In her 2002 performance review Payne noted that Goelzer "had" an excellent attendance record in the past, but that she used 39 days of sick leave in 2002.  Goelzer's health problems continued in 2003.  She used 176 hours of approved FMLA leave for additional surgery and doctors appointments throughout the year, a fact noted by Payne in her 2003 performance review.  This time, however, he did not award her a merit increase. In response to Goelzer's challenge to the decision, Payne referenced her use of nearly 113 days of sick leave and vacation during the past two years.  In 2004 she used 94 hours of sick leave.  She took approved intermittent FMLA leave in 2004 and 2005 to care for her mother.  While she received merit increases in 2004 and 2005, she was told that the increases were not more because of her absences to care for her mother. 

In 2006, Goelzer requested two months of FMLA leave to undergo foot surgery.  Her request was approved.  In the meantime, Mr. Payne's position was changed to County Administrator.  In his new position, he had the authority to discharge Goelzer on his own accord.  Payne terminated Goelzer two weeks before she was scheduled to take FMLA leave.  He hired a replacement sometime thereafter.

Goelzer filed suit alleging that her termination and failure to reinstate her from leave violated the FMLA. The County argued that Payne simply exercised his legal authority to replace Goelzer with someone of his own choosing who had a grater skill set, and that it had nothing to do with her exercise of FMLA rights.  

In reversing the award of summary judgment for the County, the Seventh Circuit initially conceded that this was one possible explanation for the termination decision a jury might choose to believe.  However, the Court went on to find that a jury might also choose to believe that the decision to terminate Goelzer was due to her protected FMLA activity.  As evidence, the Court noted:

• Comments made by Payne expressing frustration with Goelzer's use of FMLA leave in her past performance evaluations
• References in her performance evaluations contrasting her past "excellent" attendance with her her current heavy FMLA leave usage
• Payne's explanation that Goelzer did not receive a larger merit increase because she took off too much time to care for her mother- on FMLA leave
• The absence of evidence in performance reviews evidencing Payne's alleged concern with her deficient skill set and consistent satisfactory performance ratings
• The absence of evidence that Payne had taken action to remove Goezler for performance deficiencies before he received his promotion 
• The absence of evidence that Payne was restructuring Goezler's job to include a greater skill set; and
• The fact that he terminated Goezler shortly after her request for two months of FMLA leave.

Comment:  The FMLA prohibits an employer from interfering with or discriminating against an epmloyee for exercising FMLA rights.  It is also well established that an employee's exercise of FMLA rights does insulate the employee from performance-based adverse actions, including removal.  However, in order to effectively establish that the adverse action is due to performance deficiencies and not the exercise of FMLA rights, the facts must be consistent with the employer's non-discriminatory explanation.  That was not the case in Goelzer.  The references to leave usage, including FMLA leave, in annual performance evaluations, the  denial of merit benefits based on leave usage, including FMLA leave, and the absence of evidence supporting the employer's assertion of deficient performance, led the Court to conclude that there was sufficient material facts at issue to defeat summary judgment.  While the County may ultimately convince a jury that it did not violate the FMLA, the cost to litigate or settle this matter rose dramatically as a result of the Seventh Circuit's decision.

Employer's would be well-advised not to include references to FMLA usage in performance reviews, however benign the intention.  If the employee does not receive perfect performance marks and the highest monetary bump, it is relatively easy for the employee to point to the reference to FMLA usage as the real reason for their less than stellar performance review.  As demonstrated in Goelzer, that could be an expensive mistake.  

The case also reaffirms that managers who have problems with an employee's performance need to address that problems.  You might think that by giving an employee a satisfactory performance review you have really given them a bad review.  In Goezler, that strategy back-fired.  The satisfactory review undermined the County's argument that the employee was unsatisfactory, at least for purposes of summary judgment.     

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.  

Goelzer v. Sheboygan County, Wisconsin, No. 09-2283 (7th Cir. May 12, 2010)   

FMLA Right to Commence Leave is Not Absolute, 11th Circuit Holds

Betsy Krutzig was employed by Pulte Homes. At the time of the events at issue she was on a performance improvement plan.  On August 17, she requested FMLA leave for surgery.  On the same day, a disgruntled customer filed a complaint with a Pulte Vice President.  The VP decided the next day to terminate Lrutzig for failure to improve, and due to the customer complaint.  Krutzig sued alleging that her termination a day after requesting FMLA leave interfered with her right to take FMLA leave.   The Eleventh Circuit disagreed.  Joining the Sixth, Eighth, and Tenth Circuit, the Eleventh Circuit held that an employee does not have the absolute right to commence FMLA leave.  An employee may be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave. The Court reasoned that an employee who requests FMLA leave has no greater protections against her employment being terminated for reasons unrelated to an FMLA request than she did before submitted her request.  The Court found that to be the case, and affirmed the district court's award of summary judgment in favor of Pulte. 

Krutzig v. Pulte Home Corp., No. 09-12512 (11th Cir. April 5, 2010)

Comment:  The decision is not a complete surprise as the Eleventh Circuit had previously found that an employer could deny reinstatement to an employee for reasons unrelated to the exercise of FMLA rights without violating the FMLA.  The case presented the Court with the opportunity to apply the same rationale to discipline an employee after they have requested FMLA leave, thereby preventing the employee taking FMLA.  Again, the employer may only do so where the action taken was for reasons unrelated to the exercise of FMLA rights.  As in this case, legitimate reasons may involve removal.  Non-disciplinary reasons, such as a layoff or business shutdown, may also prevent an employee from exercising FMLA rights post-request.       

The Eleventh Circuit covers Atlanta, Georgia, and Florida. 

Employee Not Requried to Take FMLA Leave to Establish FMLA Retaliation Claim, Third Circuit Finds

The Third Circuit in Erdman v. Nationwide Ins. Co., No. 07-3796, 2009 U.S. App. LEXIS 20979 (3d Cir. Sept. 23, 2009) clarified its standard of proof for establishing an FMLA retaliation claim.  Specifically, the requirement that an employee have "taken" FMLA leave.  See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004).  

Nationwide fired Erdman a month after she requested FMLA leave, but before her leave was set to begin.  Erdman requested seven weeks of FMLA leave in April to begin in July. She was terminated in May.  Erdman sued alleging that her termination was in retaliation for requesting FMLA leave. Nationwide argued that the retaliation claim must fail because Erdman had not taken any FMLA leave, as required by a plain reading of then 29 CFR 825.220(c) and Conoshenti.  The Third Circuit disagreed.  According to the Court:

Simply put, this Court has never held that an employee fired after requesting FMLA leave but before the leave begins cannot recover for retaliation, and Nationwide cites none of our precedents other than Conoshenti to support this proposition. REading Conoshenti as Nationwide urges would perversely allow a employer to limit an FMLA plaintiff's theories of recovery by preemptively firing her. Accordingly, we interpret the requirement that an employee "take" FMLA leave to connote invocation of FMLA rights, not actual commencement of leave. We therefore hold that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee.

The Court vacated the lower court's award of summary judgment on Erdman's FMLA claim, and remanded the case back fo the District Court.

Comment:  The Circuits are divided whether claims that an employee was disciplined or discharged for "taking" FMLA leave should be analyzed as interference claims or discrimination claims.  The distinction is important because of the difference proof schemes that apply.  Interference claims do not require proof of discriminatory intent, whereas discrimination claims do. In Erdman, the Third Circuit expanded the reach of retaliation claims by broadly interpreting the "taking leave" requirement to cover a request for leave. 

Employee's Subjective Feelings that Employer Was Attempting To Dissuade Him from Taking FMLA Leave Insufficent to Establish Interference Claim

Joseph Di Giovanna alleged that Beth Israel Medical Center interfered with his FMLA rights by attempting, unsuccessfully, to dissuade him from taking FMLA leave.  Di Giovanna pointed to comments made by his supervisor, Dakis.  When Di Giovanna allegedly asked her if he should file for FMLA leave, Dakis allegedly told him that "there was no need to, that another director.. had a mother that was terminal, that passed away and she did not file for FMLA."  Without even inquiring what Dokis meant, Di Giovanna claims that he "understood" Dakis to have been discouraging him from filing for FMLA leave." 

Di Giovanna also alleged that he was discouraged as a result of being "interrogated" and "harassed" with "barrages of questions" about his father's condition at "inappropriate times."  The court found that the cited deposition testimony failed to support the inflammatory characterization.  The alleged offensive questions were how Di Giovanna's father was doing and which hospital he was in. 

The court found that Di Giovanna's subjective feelings, assuming he actually had the feelings he now claim he had, abut what they actually said are insufficient to constitute interference under the FMLA, and not one of the alleged statements would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise FMLA rights."  The court observed that Di Giovanna himself was granted all of the leave he requested.  The court awarded summary judgment in favor of the defendant Medical Center.

Comment:  An employee's subjective belief that his or her employer was attempting to discourage them from exercising their FMLA rights is not the controlling standard.  Rather, courts will apply an objective standard to determine whether, in context, the alleged discouraging conduct would have discouraged a similarly situated employee "of ordinary resolve."   

Unfounded Fear that Employer Might Discipline Employee for Taking FMLA Leave Insufficient to Establish FMLA Interference Claim

Anderson, an eligible employee of Avon Products, an FMLA covered employer, requested a sick day for a diverticulitis episode.  In response, Shao, his supervisor, indicated that Anderson would incur an attendance violation if he did not come to work only if he did not produce a doctor's note explaining his absence.  Anderson elected not to take the leave.  He was not assessed an attendance violation. 

Anderson sued alleging that Avon interfered with his right to take FMLA leave. The Sixth Circuit disagreed.  The court noted that Shao did not deny Anderson's request for leave.  Rather, the logical implication of Shao's statement was that Anderson "would not incur a violation if he did produce a doctor's note."  The FMLA permitted Avon to require Anderson to substantiate his request for serious health condition leave with a medical certification from a health care provider.  The court observed:

Anderson's FMLA-interference claim is therefore based on his fear that Avon might have         disciplined him had he taken the leave.  But that fear, as explained above, ws unfounded, given Shao's statement.

Comment:  Although unstated, the court applied a reasonable person standard in finding that that Shao's statement did not interfere with Anderson's FMLA rights.  Although awkwardly phrased, Shao's statement, when deconstructed, did not threaten adverse action if Anderson took FMLA leave.  The fact that Anderson believed otherwise was not controlling. 

While ultimately victorious, the lawsuit undoubtedly cost Avon a bundle in time and treasure to defend.  The situation may have been avoided had Avon provided Shao with an approved form or packet for responding to employee requests for FMLA leave in a way that avoids costly ambiguity. Supervisors would be trained to simply hand over the FMLA packet.  If the employee has questions they should be directed to a named HR professional.  Given the complexity of the FMLA and the cost of litigation, vesting primary responsibility for handling FMLA requests with front line supervisors is fraught with expensive danger.            

Anderson v. Avon Products, Inc., 2009 FED App. 0540N, 2009 U.S. App. LEXIS 17499 (6th Cir. Aug. 5, 2009). 

    

Absent Damages, Technical Violations of the FMLA Do Not Support Recovery

The FMLA does not afford an employee relief for technical violations of the Act absent proof that the employee was harmed by the employer's violation.  To demonstrate harm, an employee is not required to prove monetary damages.  However, they must be able to demonstrate some harm as a result of the violation.

In Demers v. Adams Homes of Northwest Florida, Inc., No. 08-13044, 2009 U.S. App. LEXIS 5844 (11th Cir. March 20, 2009) the employer violated the FMLA by denying the employee leave.  The employee was unable to articulate any harm suffered as a result of the denial.  In sustaining the award of summary judgment to the employer, the Eleventh Circuit observed that the FMLA does not entitle a plaintiff to recover for technical infractions of the FMLA absent damages.

Comment: To maintain a viable civil suit an employee must be able to demonstrate some harm or prejudice resulted from the FMLA violation.  The prejudice need not result in a monetary loss to the employee, but it might.  For example, the employee may have been required to use paid leave rather than unpaid FMLA leave for the absence.  Or the employee may have been subject to a cancellation fee for a missed medical appointment.  Absent prejudice, the employee's FMLA claim, even if the employer technically violated the FMLA, will likely be dismissed.