Business Workshop: Supervisors can have FMLA liability

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Supervisors beware: A recent federal court ruling established that supervisors who violate the Family and Medical Leave Act can be held individually liable, putting the supervisor's personal assets on the line.

In other words, it's not just the company's liability that's at stake.

The act requires employers with 50 or more employees to permit employees to take up to 12 weeks of unpaid leave for medical reasons or to care for a loved one. The law forbids employers from retaliating in any way against employees who take or request leave.

In a recent case, the Third Circuit, which covers Pennsylvania, determined that managers who have a certain level of supervision over employees can be considered "employers" under the law, and therefore held individually responsible if they retaliate against employees who have taken or requested leave.

Supervisors should adhere to the following tips to avoid violating the Family and Medical Leave Act:

• Don't make any comments that discourage an employee from taking or requesting leave.

• Don't make any changes in compensation, duties or other conditions of employment for any reason related to leave.

• Don't reference leave in a performance review.

• If you need to discipline an employee for reasons unrelated to leave, make sure that those reasons are well documented.

• Don't ask invasive or overly personal questions about an employee's medical condition.

• Don't harass the employee about coming back to work as soon as possible.

• Don't tell other employees about the employee's medical condition.

• Rely on the employee's doctor to determine what duties an employee is capable of performing.

• Tell the employee if time taken off will be counted toward the employee's leave.

So far it is unclear whether the courts have stretched individual liability under the Family and Medical Leave Act to cover other management employees such as attorneys or human resource professionals.

-- Amanda Gerstnecker
Meyer, Unkovic & Scott
arg@muslaw.com

businessnews - legalnews

Business workshop is a weekly feature from local experts offering tidbits on matters affecting business. To contribute, contact Business Editor Brian Hyslop at bhyslop@post-gazette.com.


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