Human Resource Blog

written up while on FMLA

Last November an employees FMLA request was approved with stipulations stating she can take up to 4 days in 1 week off due to FMLA for her 5 year old son. She exhausted her one week of personal time, 3 days were used for FMLA for her son and 2 days were used due to other reasons. Her manager has told her on 3 different occasions that she needs to be careful because she is out of personal time. What is the purpose of filing FMLA if the manager/employer is still making comments that she has no time left and needs to be careful when taking days off even when using FMLA time? If this employee calls in to work using FMLA for her son can she still be fired or written up even while on FMLA?

An employee who is on FMLA can be written up for performance issues or other reasons. But, she cannot be disciplined for taking approved FMLA leave. That would negate the whole purpose of FMLA. The federal Family and Medical Leave Act is in place to permit employees to take time off when an immediate family member (including a son or daughter) has a serious health condition. This employee has gone through the process to certify that condition, and must be permitted to take up to 4 days per week off, unpaid. The employee is entitled to use FMLA leave until she has taken the equivilant of 12 weeks of leave, in a 12 month period.

It is possible that the supervisor in this case isn’t aware of the employees FMLA leave, or has forgotten it. It is also possible that the FMLA certification has lapsed, and that the serious health condition needs to be recertified, in order for the employee to take such leave. Teh supervisor may be warning the employee that any additional FMLA time will be unpaid. Or, the supervisor may believe that the employee is taking time off for other reasons, not related to the FMLA. If that were true, the employee could legitimately be disciplined.

The best course here is for the supervisor, HR person and employee to all sit down and have a conversation about the FMLA leave. The employee seems to believe that she can take up to 4 days per week off indefinitely until her FMLA is used up. The supervisor seems to think that it was a one-time occurrance. This needs to be clarified, for everyones benefit.