W2 Issues/Concerns


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Law & Order: Court case raises question over work performed during FMLA leave

A recent court case profiled by HR Morning News has raised questioned over whether an employee can and should be expected to perform while out on leave under the Family and Medical Leave Act (FMLA).

In the case, Ohio-based respiratory therapist Julie Ves sued Regency Hospital in Toledo amid claims that they asked her to conduct so much work over the phone that her FMLA rights were interfered with. Specifically, Vess, who was terminated shortly after returning from FMLA leave for “practicing outside her scope,” claimed that while she was recovering from a knee injury incurred while at work, she was asked to field phone calls from therapists about scheduling, field calls from supervisors regarding her work duties and responsibilities that needed to be covered while she was out, complete continuing education training prior to returning to work from her FMLA leave, input data into a computer system and submit evaluations on the respiratory therapists she supervised.

For its part, Regency claimed that allowing Vess to take nearly 13 weeks of FMLA leave, paying her workers’ compensation and reinstating her to the position she held prior to her surgery was all evidence that it didn’t interfere with her rights under the FMLA. Moreover, Regency noted that the reason for her termination was completely separate from the fact that she took FMLA leave.

However, the court ruled that all Vess had to do for the case to proceed was present evidence that she’d been denied any benefit to which she should’ve been entitled under the law, including the right to not have to perform-work related tasks while on leave. Further, the court ruled that Vess’ statements about the work she had to do while on leave were enough to show she may have been denied FMLA benefits.
The case will next move to trial, at which point Regency will either reach what is expected to be an expensive settlement or endure a lengthy legal battle. So, what can we learn from this case?
In the Vess case, the court ruled that employers can ask workers out on FMLA leave to:
•pass along institutional knowledge to new staff
•provide computer passwords
•seek closure on completed assignments, and
•identify other employees to fill duties/roles

However, HR Morning News warns that asking a worker on leave to do anything more could see you in the same position as Regency.

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