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Can an employee on FMLA leave from work attend a night concert?

Monday, October 9th, 2017

A federal court in Texas has dismissed a claim of FMLA discrimination and retaliation by a woman who was fired after attending a Beyoncé concert while she was on personal medical leave. The railroad employee claimed that the company interfered with her rights under the Family and Medical Leave Act and illegally terminated her. The employer countered that she was fired for abusing the leave policy and failing to communicate with her managers per FMLA rules.

The Northern District of Texas judge shut down the woman’s claim with Beyoncé-like finality. But it raises the legitimate question of whether people on medical leave or family leave are entitled to enjoyment of life or expected to sit at home and recuperate in stoic solitude.

Employee’s actions during leave raised eyebrows

The Texas case, Jackson v. BNSF, involved a woman who was under pressure at work. Shortly after management placed her on a performance improvement plan, Ms. Jackson notified her boss that she was taking disability leave for an unspecified medical condition.

The Family and Medical Leave Act allows up to 12 weeks of unpaid leave for a personal health crisis or to care for a seriously ill family member. The employer is not entitled to full details or veto power. But the employer is entitled to ask for status updates and a schedule of when the employee expects to be in and out of the office.

At the beginning of her leave, Ms. Jackson was unresponsive to repeated inquiries about business matters, according to the court documents. A few weeks later, Jackson was spotted by a co-worker at the music concert. In fact, Jackson was watching Beyoncé from the employer’s corporate suite at the stadium.

The employer suspected her leave was an abuse of FMLA policy if not downright fraudulent. When asked to explain her presence at the concert, she did not respond. When pressed again, she emailed that her doctor had not cleared her to discuss work. When given an ultimatum to check in with her manager by a cutoff date, she did not respond. The company moved to terminate, and Jackson later filed suit for FMLA violations and retaliatory discharge.

What is the expectation of employees under FMLA leave?

The employee must give 30-day notice if the leave is foreseeable, or notice “as soon as practicable” if unforeseen. The employee must give the employer sufficient explanation of the nature of the leave. In the case above, Ms. Jackson told her bosses she was under a doctor’s care and was “not well to return to work.” A doctor could conceivably back up such a scenario.

By dismissing Jackson’s claim, the federal judge skirted the question of whether an employee who was not well enough to work could be well enough to attend a concert. Her disability leave, according to court documents, was ostensibly related to a “mental breakdown” over her workload and performance review. Returning to the workplace might have triggered anxieties that after-hours entertainment would not.

People on medical leave or family leave are not precluded from buying groceries, going to church, attending soccer games or otherwise “living their life.” But what about taking a long-planned family vacation while on leave from work? Or continuing with Wednesday night bowling league as a respite from caring for Mom during the day? Or seizing the golden opportunity to see “Queen Bey” from a luxury suite while on disability leave.

Such gray areas may merit legal advice from an employment law attorney. But one moral of the story for anyone on FMLA leave is to stay in communication with the employer. Once that dialogue is closed, the relationship may become highly adversarial.

This article was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 9, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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