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FMLA requests and employer comments

Under the Family and Medical Leave Act, some of the comments that employers make about medical leave or to employees who request medical leave are appropriate, while others are not. Both California employers and employees should know the fine line between allowed and forbidden remarks.

For example, assume that an employee requests sporadic leave under FMLA to take care of a husband with a serious illness. Although she is approved, the supervisor tells her that she should not take the leave because it will leave the business short-handed and it will make her appear inconsiderate to the other workers who must take over her shifts.

Employers cannot deny, interfere with or restrain employees from trying to use or for using FMLA leave, including discouraging them. In the above situation, the employee could have an actionable interference claim. At the very least, the comments could exclude the employer from having the claim dismissed.

In another example, however, the employee asks for FMLA leave for a planned surgery. Her supervisor says that it would help if the surgery was planned for after the busy season, even though she is already approved to take the leave. This is a slightly different situation because the employer is asking the employee to, if possible, make a reasonable effort to schedule the surgery and FMLA leave to avoid undue disruption to the business. Under FMLA, employees are required to avoid inconveniencing employers with scheduled treatments if possible.

The words that employers use when they comment about or talk to their employees about FMLA leave is crucial. Additionally, the California Family Rights Act gives mothers and fathers many of the same rights as the FMLA to take off of work to bond with their newborn or newly adopted children. When employees are denied FMLA or CFRA rights, or their employers interfere with their rights in other ways, the employees could file claims with the help of employment law attorneys.

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