Employees must be reinstated immediately on return from FMLA leave

An employer may require employees to submit a return to work certification prior to returning to work from FMLA leave. Once the employee submits a certification, the employer must reinstate the employee to his/her former position or an equivalent position. Employers cannot request a second opinion or challenge the return to work certification. Additionally, employers cannot condition the return to work on a fitness-for-duty examination.

Employers can seek clarification about the certification but only with the employee’s permission and it must be a health care professional who contacts the employee’s physician or health care provider. Additionally, employers may not delay the employee’s return to work while seeking clarification.

Individual supervisors can be liable under the FMLA

Numerous courts have held that individual management employees can be liable under the FMLA. The definition of an employer under the FMLA is the same definition used under the Fair Labor Standards Act, which provides that individuals can be liable.

Releases under FMLA

Releases under the FMLA should generally follow the same guidelines as releases under the Age Discrimination in Employment Act. In order for a release to be valid, the waiver must be knowing and voluntary. The employee should understand that the release will bar him from filing suit under the FMLA. The court may examine whether the following factors are present to determine if the release is valid:

  1. The clarity and specificity of the language.
  2. Amount of time given to the employee to consider the release.
  3. Whether the worker was encouraged to seek or received benefit of counsel.
  4. Whether the worker could negotiate the release’s terms.
  5. Whether the employee was given consideration in exchange for the waiver.

If the minimum requirements are not met, the release can be invalidated and the employee may still be able to bring suit under the FMLA.

EEOC Issues Guidance On Harassment

The EEOC issued a guidance entitled "Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors" in response to the recent Supreme Court rulings on sexual harassment.

In 1998, the United States Supreme Court issued four landmark decisions, which changed the ground rules in harassment cases. The Supreme Court held that an employer is strictly liable for sexual harassment by a supervisor if the harassment results in a tangible employment action such as discharge, demotion or undesirable assignment. If no tangible employment action occurred, the employer can escape liability by establishing, as an affirmative defense, that it exercised reasonable care to prevent and correct any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any corrective opportunities.

Although the Supreme Court cases focused on sexual harassment, Title VII of the Civil Rights Act of 1964 prohibits harassment based on an individual’s race, color, religion, sex or national origin.

The EEOC states that the rule set forth by the Supreme Court applies to all forms of harassment and "employers should establish anti-harassment policies and compliant procedures covering all forms of unlawful harassment."

Employers should develop a policy and procedure for preventing and investigating all claims of harassment. Because a harassment policy can provide an affirmative defense, there is no reason not to adopt a policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.