Reconciling Medical Leave with Critical Deadlines Requires a Considered Approach
Your company has a major project deadline coming up, but an essential employee is about to go on unpaid FMLA leave following the birth of her child. The project has already been pushed back once, and you really need this employee’s help to avoid further complications. Can you ask her to forgo the unpaid leave and offer to pay her a full salary if she works from home on a part-time basis? Of course, the answer will depend on the details of your situation, but a recent decision by the Eleventh Circuit in Evans v. Books-A-Million illustrates how asking employees to work from home instead of taking unpaid leave can lead to costly FMLA interference claims.
Books-A-Million Payroll and Insurance Manager Tondalaya Evans was a critical player in the implementation of the company’s new payroll system. Evans was pregnant, and her due date was shortly after the system’s projected launch date. Following childbirth, she planned to take unpaid, FMLA-protected leave following childbirth. However, the projected launch date was pushed into the middle of Evans’s intended leave period, and Evans was repeatedly told that Books-A-Million needed her to continue to work after she gave birth, despite Evans’s repeated expression of her desire not to do so. Evans’s supervisor also indicated that 50% of Evans’s annual bonus would depend on the successful implementation of the payroll system. Naturally, Evans concluded that she had no choice but to work from home in accordance with her employer’s wishes.
Apparently, despite Evans regularly working “nearly full-time” during her intended leave period (and having no previously-documented performance issues), her work during this time did not live up her supervisor’s expectations. Shortly after Evans’s return to work, Books-A-Million management decided to create a new position – Risk Manager – and transferred Evans into that role, completely removing her payroll-related responsibilities. Evans refused to accept the Risk Manager position (in part because she had no risk management experience), and Books-A-Million terminated her employment. Evans sued, alleging FMLA interference, sex discrimination, pay discrimination, retaliation, and COBRA claims.
The district court was persuaded by Books-A-Million’s argument that because Evans was paid a full salary during her intended leave period, she was not harmed and had no actionable FMLA interference claim. On appeal, however, the Eleventh Circuit reversed, finding that, “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.”
Although few employers may be inclined to force the issue in the manner presented in this case, many have occasion to seek some flexibility from an employee who is taking leave, especially in cases where intermittent leave conflicts with critical business deadlines. This decision does not preclude efforts by the employer to find a mutually acceptable compromise, if the employee’s circumstances permit it and the discussion is handled sensitively. However, to ensure FMLA compliance, the employer should be conscientious in its implementation of any such compromise. Clearly, the employer may not simply ignore the employee’s FMLA entitlement by insisting that the work get done, and at least in some courts, monetary damages may not be sufficient to make an employee whole for interference with their FMLA rights.
 Evans v. Books-A-Million, 13-cv-10054 (11th Cir. Aug. 8, 2014)