By Jonathan K. Driggs, Attorney at Law


A memo goes out from the CEO to all management personnel and employees:


“Sorry folks, but it’s crunch time, our backlogged customer orders must be taken care of NOW or serious consequences will follow.  As a result, all vacations and personal leaves are cancelled until the backlog is resolved—no exceptions—it’s go time, all hands on deck until the backlog is resolved.”


Shortly after the memo goes out, an employee approaches his supervisor, “hey boss, I really hate to do this to you at a time like this, but my mother just got diagnosed with cancer and I’m going to need to take off a couple of months of FMLA leave to take care of her.”  This employee plays a critical role and his skills are desperately needed and difficult to replace.  How should the manager respond? (pick your favorite response):


  1. “Wow, I’m so sorry to hear about your mother, but you saw the memo from the boss.  Not much I can do about it.  If you’d like, we have some money in petty cash and we can send her some flowers.  Does she like petunias?”


  1. (Manager sighs and rolls his/her eyes) “I was waiting for someone to come up with a creative excuse to get out of working.  Sorry, buddy, but it ain’t gonna work with me.  Unless you’re in a coma, you’re coming to work, end of story!”


  1. “Wow, I’m so sorry to hear about your mother.  We’ll hate to lose you at a time like this, but your mother is more important.  Let’s go talk to HR and get your FMLA leave processed.”


The Family and Medical Leave Act applies to employers with 50 or more employees.  Unlike the Americans with Disabilities Act (think reasonable accommodations), there is no “useable” undue hardship provision for employers under the FMLA.  What this means is that otherwise qualified employees (e.g., 12 months of service and 1250 hours worked in the year prior to the start of leave) have a nearly unconditional right to take leave for qualifying reasons.


So, in our example above, the correct answer is “c.”  The demands of the business are simply irrelevant under the FMLA—that is just the way the statute is written.  Yes, it is true, there is a “key employee” exception under the FMLA (applicable only to employees among the 10% highest paid), but it is so limited and complicated that I rarely—if ever—see it used (and it still requires leave to be granted—the only possible limitation is regarding reinstatement).


Years ago, there was an employer I know of who was in crunch time.  An employee approached her supervisor and requested FMLA for a medical issue.  The supervisor gave the employee a hard time about it, but after multiple requests, the supervisor finally allowed her to go on leave.  However, being hassled by her manager didn’t sit well with the employee, so she contacted the US Department of Labor (DOL) and filed an FMLA interference claim.  The DOL investigator came out and met with the employer.  In the middle of the interview, the DOL investigator went off on a tangent and asked, “by the way, how do you calculate overtime?”  This question had nothing to do with the FMLA claim, but the investigator was using the opportunity to potentially trigger a company-wide wage and hour audit.  Ouch.  Not good.  The DOL is one of the most powerful government enforcement agencies out there and you really don’t want to look for ways to invite them in for a chat—they will usually find something unpleasant to do with their time.


What brought that DOL investigator into that workplace?  It’s very simple: the manager gave an employee a hard time about something that she had an unconditional right to do: take FMLA leave for her medical condition.  So here’s the tip to share with your managers: don’t give employees a hard time about their FMLA requests even when those requests come at a bad time for the business—not only can it be a poor employee relations practice, it’s not a battle you will win (and like the example above, it could trigger much bigger and more expensive problems).  Teach your managers to be very respectful of FMLA rights, avoid screening out FMLA requests themselves, and forward employees on to your FMLA administrator (who can take appropriate steps to verify the legitimacy of the request).  This way the DOL can find somewhere else to spend their time.


This article should not be construed as legal advice.  Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.  Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission.


Jonathan’s popular “Employment Law for Managers Seminar” is being offered by two “Custom Fit Programs” at significantly discounted rates for “for-profit” employers (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers):


For employers in Utah County: Thursday, August 26 at the Mountainland Applied Technology College’s Thanksgiving Point campus.  For details and registration contact: Roger Rice at 801-753-4153.


For employers in Salt Lake County: Thursday, October 7 at the SLCC Miller Campus in Sandy.  For details and registration contact: Debbie Patten at 801-957-5244.


For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see:


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