Best Ohio FMLA Lawyer Answer: Can my boss force me to work while I’m on FMLA leave? What should I do if my manager keeps emailing me while I’m on medical leave? Can I be fired for not responding to work while I’m out on FMLA leave?
As our employment law attorneys have discussed, the Family Medical Leave Act allows a qualified employee to take twelve weeks of unpaid leave to care for a child, spouse or their own serious medical condition. (See Do I Have A Claim For FMLA Retaliation?; Can My Job Deny Me Part Time Hours Under The FMLA?; Can My Job Block Me From Coming Back From FMLA Leave?; and Top FMLA Lawyer Reply: Am I Eligible For Medical Leave From My Job?). Employees may also take FMLA leave to care for the birth of a new child. With advances in technology allowing employees to take home their work through computers, blackberries, and smart phones, it is not uncommon for work to be done at all hours and in a lot of places other than at your job. But, can an employer make an employee work from home while they are on FMLA leave?
The answer “no” seems obvious, but there are still uneducated employers who think an email or two wouldn’t be unlawful. In Evans v. Books-A-Million, the Eleventh Circuit Court of Appeal held that the employer violated FMLA by forcing the employee to work while she was on FMLA. Evans, a payroll manager, requested FMLA leave for the impending birth of a child. Before Evans left for maternity leave, her boss called her into the office and informed her that she would need to work while she was out because the new payroll system she created would go live while she was on leave. Evans not only ended up working during her FMLA leave, she was also unpaid for her work and upon her return from leave was retaliated against transferred to a new job. Evans quit and filed suit against the company for FMLA retaliation.
The Eleventh Circuit Court of Appeals addressed the legal standard to prove a claim of FMLA interference:
To prove FMLA interference, Evans must demonstrate “that [she] was denied a benefit to which [she] was entitled under the FMLA,” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir.2008), and that she “has been prejudiced by the violation in some way.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002); see McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 7 (D.C.Cir.2010) (“[Plaintiff’s] burden is to show both that her employer interfered with … the exercise of or the attempt to exercise, any right provided by the FMLA … and that she was prejudiced thereby.” (internal citation and punctuation omitted)). …
The court in Eivans found that there indeed was a violation of FMLA, and held “It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.”
Having found a FMLA violation by the employer, the court turned to the damages that are available:
The FMLA provides explicitly for two (distinct) categories of remedies: (1) “damages,” including compensation, benefits, and other monetary losses sustained by reason of the violation, § 2617(a)(1)(A); and (2) “such equitable relief as may be appropriate, including employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B) (emphasis added). While the appropriateness of a particular equitable remedy is “left to the trial court’s discretion,” Demers v. Adams Homes of Northwest Fla., Inc., 321 Fed.Appx. 847, 849 (11th Cir.2009), the court must consider the individual facts and circumstances of a plaintiff’s case, and must not refuse even to consider equitable relief. See Ragsdale, 535 U.S. at 89, 122 S.Ct. 1155; Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1297 (11th Cir.2013). Moreover, “[i]f a trial court refuses to grant further legal or equitable relief to a plaintiff who insists that such relief is necessary to make the plaintiff whole, it must articulate its rationale.” Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1052 (11th Cir.1989). …
And, the prejudice or harm allegedly suffered by Evans may well be remediable by reinstatement. See 29 U.S.C. § 2617(a)(1)(B). The district court may also consider the equitable remedy of “front pay” for an appropriate period if it determines that reinstatement is not viable in this case. Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, 810-11 (8th Cir.2013) (front pay is an equitable remedy under the FMLA); Weatherly v. Alabama State University, 728 F.3d 1263, 1271 (11th Cir.2013) (“In deciding whether to award front pay, rather than reinstatement, courts look to whether discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy.”).
Therefore, if your employer sends you an “urgent email” or has some kind of assignment for you on FMLA leave, you should remind them that you are on protected leave and any assignments should either be reassigned to another co-worker or wait on your desk for your return.
If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.
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