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Employment Blog

FMLA Leave May Be Involuntary - But Risky Proposition

Authored by Ruder Ware Attorneys
Posted on October 23, 2013
Filed under Employment

A few days ago a prospective client flippantly asked me if it could force one of its employees to take FMLA leave. The prospective client was surprised to learn that the answer may be yes [under the right circumstances, of course assuming the employee is eligible for FMLA leave and the reason for the absence meets the definition of "serious health condition"]. However, notwithstanding the allure of involuntary FMLA leave [e.g., when an employee clearly appears to pose a direct threat to his or her safety or the safety of others], involuntary FMLA leave may give rise to a so-called "interference with rights" claim which can land employers in hot water.

A recent federal court case out of Minnesota is the most-recent case to touch on the practice of involuntary FMLA leave. The case is Walker v. Trinity Marine Products, Inc. In Walker, the employer told its employee that it believed she suffered from a serious health condition, placed her involuntarily on FMLA leave, and required her to obtain a certification from her doctor of her fitness to return to work. When the employee ultimately furnished the requested certification, the employer refused to allow her to return to work, and she later sued. The employee claimed that her employer interfered with her rights under the FMLA by placing her on leave when she did not suffer from a serious health condition, and thus, wrongfully impeded her ability to use FMLA leave when she really needed it.

Although, the Walker Court did not specifically take a position on whether involuntary FMLA leave is allowed, it did reference cases from other jurisdictions that have endorsed involuntary FMLA leave as long as the employee has a serious health condition [e.g., the Sixth Circuit's 2006 opinion in Wysong v. Dow Chemical Co. and the Fifth Circuit's 2006 opinion in Willis v. Coca Cola Enterprises, Inc.]. However, the Walker Court did conclude that if involuntary FMLA leave is allowed, an interference with rights claim lacks merit unless the employee can show that the involuntary leave prevented the employee from later using FMLA leave when needed. An employee would also be required to show that he or she did not actually suffer from a "serious health condition" at the time his or her employer placed him or her involuntarily on FMLA leave [see Wysong v. Dow Chemical Co.].

Although involuntary FMLA leave is tempting in certain situations, restraint is required. If an employer is considering involuntary FMLA leave, careful analysis of whether the reason for leave is a "serious health condition" is necessary.