By Lisa B. Golan, https://www.golanlawoffice.com
Per the New York Times article “The Death of the Sick Day,” due to new flexible work-from-home and time-off policies, “no longer does [an] employee have to ‘sell’ their sickness to the boss with a list of symptoms.”
I disagree. If employees want to be protected against possible disciplinary action for taking leave, the better course is to “sell it”. Under the Family and Medical Leave Act (FMLA) eligible employees are entitled to 12 weeks of job protected leave, but only if the employee provides sufficient information for their employer to know that the leave may be for an FMLA qualifying reason. Qualifying reasons include their own or a close family member’s serious health condition (including time off needed for chronic medical conditions); pregnancy and bonding with a newborn, adopted or foster child in their first year; and for qualified exigencies for military personnel and their families. If employees meet FMLA notice requirements, their “employers cannot use the taking of FMLA leave as a negative factor in employment action …; nor can FMLA leave be counted under no fault attendance policies.” 29 C.F.R. §825.220(c). And, the FMLA not only allows employees to take off full-days, with limited exceptions, it also permits employees to work reduced-hours schedules or to take intermittent leave in increments as small as the shortest period of time the employer uses to account for other forms of leave, and at a maximum in hourly increments. 29 C.F.R. §825.202-205.
If an employee with a flexible work-from-home schedule who qualifies for one of these types of leave gets behind – and hasn’t put their employer on notice of their need for FMLA qualifying leave – the employer may be able to end their employment for lack of productivity. If, however, the employee gave the employer enough information to know that the leave was FMLA qualifying, the employee could only be required to perform at a level proportionate to their time at work. See Pagel v. Tin Inc., 695 F.3d 622, 629 (7th Cir. 2012) (“[The FMLA] require[s] that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.”).
In addition, if an employer doesn’t respect an employee’s request for FMLA-eligible leave and insists that they continue to work from home—for example when they are out on parental leave, this may provide an employee with some protection from a later adverse action or at least with a potential claim for relief under the FMLA. See Evans v. Books-A-Million, 762 F.3d 1288, 1297 (11th Cir. 2014) (“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.”)
So, while the lucky few who have control over their schedules may not be “required” to “sell” why they need off, the safer course may be to disclose FMLA qualifying reasons … just in case the boss has a change of heart about how flexible she wants to be.
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