Employers must tread carefully in FMLA cases

Employers in Arizona and throughout the country have the responsibility to properly communicate with employees who are on FMLA leave. If eligible, an employee can take up to 12 weeks of unpaid leave every 12 months. Employers must generally let workers who are on leave know if they are close to using their allotted leave time for the year. Failing to do so could be interpreted as interfering with that worker's right to take leave.

This was the main takeaway in the case of Ashby v. Amscan, Inc as well as the case of Dusik v. Lutheran Child & Family Services of Illinois. In the first case, an employee returned to work four days after her leave period ended, at which time she was terminated. The court ruled that the company did not sufficiently inform the worker of her rights while on FMLA leave.

In the second case, an employee needed three to six months off to recover from surgery. In this matter, the court ruled that the employer had improperly interfered with FMLA rights and engaged in retaliation as it had not communicated with the employee toward the end of the leave period. The only communication from the employer was to inform the employee of when the leave period was to begin.

Those who take leave protected under the Family and Medical Leave Act to recover from a personal illness or any other qualified reason have rights under current employment law. As a general rule, employers cannot retaliate or otherwise interfere with an employee's right to take such leave. Workers who are demoted, receive poor performance reviews or who are terminated upon returning to work may wish to take legal action. If a harassment or wrongful termination claims are successful, employees may be entitled to compensation or other relief.

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