You know you can’t ask employees to work while they’re on FMLA leave, and you’ve no doubt passed that message along to employee supervisors. But how do those supervisors define “work?” Would they consider a few phone calls “work” on an employee’s part? A court might.
And a court did in the case of Julie Vess, the former director of respiratory therapy at Regency Hospital in Toledo, OH.
After she was terminated from her position shortly after returning from FMLA leave, Vess sued Regency.
She claimed that while on leave, she was asked to conduct so much work over the phone that her FMLA rights were interfered with. And the court sided with her.
What was she asked to do?
While she was recovering from surgery to treat a serious knee injury that occurred in Regency’s parking lot, Vess claims she was asked to:
- field phone calls from respiratory therapists about scheduling
- field calls from her supervisor and replacement to discuss her work duties and responsibilities that needed to be covered in her absence (one of these calls lasted about an hour, Vess claims)
- complete continuing education training before she could return to work from FMLA leave (this took “a large amount of [her] day”)
- input data into a computer system (more than one hour), and
- submit evaluations on the respiratory therapists she supervised.
Fired for practicing ‘outside her scope’
Shortly after Vess returned from FMLA leave, she was terminated for practicing “outside her scope.”
According to the suit, two days after Vess returned to work, she cancelled a doctor’s written order for one patient and wrote an unauthorized order for another. Following an investigation into the incidents, she was fired.
In response, Vess sued for FMLA interference.
Regency tried to get her case thrown out, claiming Vess didn’t have any evidence to support her case.
After all, Regency allowed her to take nearly 13 weeks of FMLA leave to recover from her injury, paid her workers’ compensation and reinstated her to the position she held prior to taking leave. And on top of all that, the reason for Vess’ termination wasn’t that she took FMLA leave.
But the court said none of that mattered and the case could proceed if Vess could present evidence that she was denied any FMLA benefits to which she was entitled — including the right to not have to perform work-related tasks while on leave.
And the court ruled Vess’ statements about the work she had to do while on leave were enough to show she may have been denied FMLA benefits.
As a result, the court ruled the case will go to trial — which stands to cost Regency a pretty penny in either a settlement or lengthy legal battle.
What you can ask employees to do?
Clearly, the problem here is Vess’ supervisor at Regency asked too much of her while she was on FMLA leave.
So where should supervisors draw the line? The court shed some light on that.
In its ruling, the court said employers can ask workers out on FMLA leave to:
- pass along institutional knowledge to new staff
- provide computer passwords
- seek closure on completed assignments, and
- identify other employees to fill voids.
But ask anything other than that of workers on leave, and employers can end up on the losing end of a costly legal battle.