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Dec13

Working during FMLA

We have an employee who is on unpaid FML. She recently had a baby and has taken about 8 weeks of her 12 week allotment. We recently held a training session and she showed up for 8 hours of the class. We had no prior knowledge that she was going to show up. Do we need to pay her for the 1 day that she was in the training?

Thank you

Yes, you need to pay this employee and the time she spent in training cannot be counted as FMLA. We assume that this employee is taking time off under FMLA, the Family and Medical Leave Act.

The federal FLSA requires an employer to pay an employee for all time she is “permitted or suffered” to work. By allowing this employee to come to the training session, you allowed her to work. Therefore, she must be paid for the work.

In addition, the current FMLA regulations, implemented in early 2009, specifically prohibit the employer from counting any time worked as FMLA. This even includes time spent checking work email or taking work-related phone calls. So, you cannot count the day this employee attended training as FMLA.

There are a few other issues with this situation that you may not have considered. This employee should never have been allowed to return to work (even for a one-day classroom training class) unless she had a doctors release. If she arrived at the training session without the release in hand, she should have been sent home. Allowing her to work without a doctors release creates a liability situaiton for the employer. If she now experiences complications, the employer may be liable for them.

Second, employees on FMLA are required to stay in communication with the employer. Your expectations regarding when and how this communication takes place should have been spelled out in the original FMLA notification forms. Ideally, the employee would have phoned you or emailed you to let you know that she planned to attend this training. You could issue this employee a verbal warning for not staying in touch by letting you know that she planned to attend this training. (However, the employee has the right to return to work and you should not deny that right, simply because she failed to phone you.)

Third, an employee does not have the right to take FMLA for baby bonding on an intermittent basis. An employee with a serious health condition can take FMLA on an intermittent basis if necessary. However, the federal regulations permit you as an employer to require that the employee take all FMLA for baby bonding continuously. If this employee does have a doctors release to return to work, she is taking the remainder of her FMLA to care for the new baby, frequently referred to as “baby bonding leave.” The employee does not have the right to come and go as she pleases during this phase. If the employee has 5 total weeks of FMLA available for baby bonding, you can require that she take all 5 weeks continuously. She does not necessarily have the right to take 2 weeks of baby bonding leave, return to work for one day, and then take another 3 weeks of baby bonding leave.

Despite these problems, we suggest you approach this issue cautiously. Any overreaction by you will be seen as illegal discrimination or retaliation.

We suspect that this situation was a simple miscommunication. Very few new mothers voluntarily leave a baby who is less than 2 months old, to attend an all-day training session. We suspect that this new mother felt pressured by her supervisor or an executive to attend this training. She may have been inadvertantly included in a mass email stating that attendance was mandatory. Or, a member of management may have told her outright that she was expected to attend. Someone informed her of the date and time of the training, which would have been unnecessary if she was not expected to attend. This was a poor way to handle the situation. Ideally, you would have made arrangements for her to be trained after she returned to work.

You need to have a casual, non-threatening conversation with this employee to uncover all the facts in this case. The best tactic would be to phone her in the next day or two. Start by saying it was good to see her, but somewhat unexpected. Ask why she decided to attend the training, and how she heard about it. Then, gently let her know that a) she needs to remain in touch with you (and specify your expectations, i.e. semi-weekly phone calls) b) she will need a doctors release to return to work and c) you do not permit employees to take baby bonding leave on an intermittent basis, so she needs to use the remainder of her leave in one block. You can consider this conversation a verbal warning.

If this employee felt pressured to attend the training while on FMLA, you should discuss with all your managers what being on FMLA means. If she has been contacted by email or expected to solve work issues by phone, you should retrain all your managers on the implications of FMLA.

Because allowing this employee to take intermittent FMLA for baby bonding establishes a precedent, you should issue a memo reminding all employees of your longstanding company policy that all baby bonding FMLA is to be taken on a continuous, rather than an intermittent, basis. (And copy this employee on that policy.)

This answer might be different if the employee were covered by a state family leave law, rather than FMLA. This is a complex issue, so feel free to post further details in the comments section.

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This entry was posted on Tuesday, December 13th, 2011 at 2:41 pm and is filed under
Attendance Management, Human Resources Management.
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