30 January 2018

FMLA Leave: Tom Brady Plays Through the Pain–Why Can't You?

Ford & Harrison LLP


FordHarrison is a labor and employment firm with attorneys in 29 offices, including two affiliate firms. The firm has built a national legal practice as one of the nation's leading defense firms with an exclusive focus on labor law, employment law, litigation, business immigration, employee benefits and executive compensation.
It's no-pain, no-gain for Tom Brady, but pressuring employees to work while injured may violate the Family and Medical Leave Act (FMLA).
United States Employment and HR
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It's no-pain, no-gain for Tom Brady, but pressuring employees to work while injured may violate the Family and Medical Leave Act (FMLA).

Love him or hate him, you have to give it to Tom Brady–the man is dedicated to his sport. Last week, he was called upon once again to play through the pain and led his team to claim the AFC championship and (yet another) spot in the Super Bowl.

This time, Brady had to grin and bear it as he played with a stitched-up right hand, while on previous occasions Brady has played through broken ribs, stress fractures, and a torn Achilles, among many other injuries. While the NFL may expect, and demand, that its highly paid, superstar athletes work while injured, employers outside of the gridiron should not encourage or pressure employees to work while they are suffering from a serious medical condition, lest they run afoul of the FMLA.

The FMLA is a federal law designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. The FMLA, which applies to all employers with 50 or more employees, requires employers to provide eligible employees with up to 12 weeks of unpaid leave each year for the birth and care of a newborn child; for placement with the employee of a child for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition. Employees are eligible to take FMLA leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

Generally, pressuring an employee to work while on FMLA leave is unlawful and sets the employer up for an FMLA interference claim. For example, in one case, a supervisor repeatedly told an employee who was going out on maternity leave how much the company needed her because she was integral to the company's roll-out of a new payroll system. Under pressure, the employee felt she had no choice but to work from home during her FMLA leave, while she was supposed to be recuperating from childbirth and bonding with her newborn. When the employee eventually returned to work, her supervisor reassigned her to another position and criticized her because the work she performed during her FMLA leave was unsatisfactory. Based on these facts, the U.S. 11th Circuit Court of Appeals concluded that the employee had presented sufficient evidence to sustain a claim of FMLA interference against her employer for pressuring her to work during FMLA leave and taking adverse action against her upon her return to work.

Although Tom Brady's no-pain, no-gain attitude has led his team to victory time and time again, those of us who employ mere mortals should not espouse a culture that encourages or pressures our employees to work while seriously injured.

Whether you are rooting for the Eagles or the Patriots this Sunday, or just there for the beer commercials like me, enjoy the game!

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.

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