Supervisors beware: A recent court ruling established that supervisors who violate the Family and Medical Leave Act (FMLA) can be held individually liable, putting the supervisor’s personal assets on the line.
The FMLA requires employers with 50 or more employees to permit its employees to take up to 12 weeks of unpaid leave for medical reasons or to care for a loved one. The law forbids employers from retaliating in any way against employees who take or request FMLA leave.
But do not assume that the word “employer” means the organization for which an employee works. In a recent case, the Third Circuit, which covers Pennsylvania, redefined “employer” to include individual agents who act in the interest of the company, including supervisors, by holding that a supervisor could be held individually responsible for violating the FMLA.
In the case, an employee claimed that her supervisor had retaliated against her for taking FMLA leave. The employee suffered from diabetes, heart disease and kidney problems and frequently had to miss work for health reasons. Her supervisor made numerous comments about the employee’s health, including writing in her performance review that she needed to, “improve her overall health and cut down on the days that she misses due to illness.”
The supervisor disciplined the employee by putting her on probation and eventually recommended that she be terminated. After her termination, the employee sued the supervisor directly for retaliating against her for exercising her rights under the FMLA, and the court held that he could be found individually liable for violating the FMLA. (Note that the case is still in its early stages, and the court’s holding merely permitted the case against the supervisor to move forward.)
The decision determined that managers who have a certain level of supervision over employees can be considered “employers” under the law, and therefore can be held responsible if they retaliate against employees who have taken or requested FMLA leave. The court generally determines that a supervisor can be considered an “employer” if the supervisor exerts authority over an employee as an agent for the organization.
Health care organizations should take the case as a warning to review their FMLA policies and train supervisors about how to handle employees taking FMLA leave. All managers and their superiors should also make sure that they make written notes of all interactions regarding employee FMLA leave, to ensure that the law is not violated.
Supervisors should adhere to the following to avoid violating the FMLA:
- Don’t make any comments that discourage an employee from taking or requesting FMLA leave.
- Don’t make any changes in compensation, duties or other conditions of employment for any reason related to FMLA leave. If you need to discipline an employee for reasons unrelated to FMLA leave, make sure that those reasons are well documented.
- Don’t reference FMLA leave in a performance review.
- Don’t ask questions that are too invasive about an employee’s medical condition.
- Don’t harass the employee about coming back to work as soon as possible.
- Don’t tell other employees about the employee’s medical condition.
- Do reduce performance standards proportionally to the amount of time spent on leave.
- Do trust the employee’s doctor to determine what duties an employee is capable of performing.
- Do tell the employee if time taken off will be counted toward the employee’s FMLA leave.
It is so far unclear whether individual liability can stretch to other responsible departments, such as legal or human resources. Health care employers can protect themselves and their employees by making sure that all decisions affecting an employee’s conditions of employment are carefully documented and checked by multiple people to ensure that no violations of the FMLA have occurred.
Amanda Gerstnecker is a corporate and employment law attorney for Meyer, Unkovic & Scott LLP. She can be reached at firstname.lastname@example.org.