The Family and Medical Leave Act (FMLA) allows employees to take up to twelve weeks of leave per year for certain reasons without the fear of losing their jobs. The Oregon Family Leave Act (OFLA) provides further, similar protections for employees within the state. These reasons include:
Serious health conditions that affects the employee’s ability to perform the essential functions of the job.
Following the birth of a child and/or to provide care for a newborn child during the child’s first year.
The employee has a child placed in his or her home for adoption or foster care and to allow the employee to provide care for that child during the first year of placement.
For the employee to provide care for a spouse, child, or parent who is suffering from a serious health condition.
Any qualifying emergency regarding an employee’s spouse, child, or parent who is a covered military member on “covered active duty.”
An employee has the right to take unpaid leave for any of the above reasons without the threat of losing their jobs. If an employee is demoted, disciplined, or terminated for taking leave under FMLA or OFLA, he or she may file a claim against their employer for unlawful retaliation.
Recent Case Regarding Abuse of FMLA Leave
The United States Court of Appeals for the Sixth Circuit recently decided an FMLA retaliation case in favor of the employer. Eirik Tillman was an employee of Ohio Bell Telephone Company who was diagnosed in 2006 with the chronic back condition, lumbar degenerative disease. Tillman’s doctors predicted that he would experience a few days a month during which his back pain would be exacerbated and he may not be able to perform his regular work duties. Doctors stated, however, that Tillman would not be able to predict the days he would suffer greater pain.
Tillman began using FMLA on an intermittent basis, claiming his back pain had flared up, and this continued throughout 2007 and 2008. His managers began noticing patterns in his leave, such as taking time off on Fridays or weekends, which regularly gave him three or four-day weekends. Some of these long weekends fell on or before holidays, such as New Year’s Eve. Furthermore, Tillman began informing his managers days, sometimes weeks, in advance that he would need FMLA leave, even though he supposedly could not predict flare-ups. His managers and human resources investigated Tillman’s leave, and discovered that he was performing regular activities on his days off that were inconsistent with severe pain. Because his employers had an “honest belief” that he had abused FMLA benefits, Tillman was unable to prevail on his retaliation claim.,
Employees should not be retaliated against for legitimate use of FMLA leave, however employers should not be punished for fraudulent or unfounded retaliation claims. If you have any concerns regarding FMLA, call the attorneys at HKM today.
