Employers may reassign duties during FMLA leave


They may also prohibit tardiness

Jamie, an employee, needed to take FMLA leave for her own condition and to care for her husband. She requested and was granted the leave, which amounted to three to four days of intermittent FMLA leave each month.

During leave, the employer asked that Jamie identify five of her accounts to be transferred to others, since accounts suffered when she was absent. Jamie, however, did not like this. Instead, she wanted managers to assign a designated “cover” person for her absences, who would pick up where Jamie left off on the accounts, but they would still be assigned to her.

Jamie also struggled with getting to work on time. She was late on occasion but was allowed to make up the time over lunch or at the end of the day. New supervisors came along, however, and decided to change this policy and require timeliness. If she was tardy in the future, Jamie would be subject to discipline.

In light of the account reassignment and tardy issues, Jamie resigned, and sued, arguing that other employees who took FMLA leave were treated differently or better, in part, by providing a dedicated cover person for their accounts.

The employer, of course, disagreed.

In finding for the employer, the court found that the account reassignment was not an adverse employment action. The regulations indicate that employers may make temporary reassignments and alter duties or responsibilities to accommodate intermittent FMLA leave. Reassignment of accounts that were not doing well was also a regular occurrence.

That the employer treated other employees who took FMLA leave was also not relevant, because a dedicated cover person was not a right to which Jamie was entitled under the FMLA.

In regard to being late for work, the court ruled that, a requirement that, going forward, an employee be on time and provide excuses for any absences is not so intolerable that a reasonable person would be compelled to resign. Therefore, Jamie’s resignation was not a constructive discharge.

Jamie also tried to argue that the company interfered with her FMLA rights because manager e-mailed the company human resources manager to inquire about the status of her FMLA balances. The court, however, indicated that this did not prove interference because the employer did not deny Jamie’s FMLA leave before or after the e-mail, and the e-mail did not instruct anyone to interfere with Jamie’s FMLA leave.

Sutherland v. Global Equipment Co., Inc. 11th Circuit Court of Appeals, No. 18-13384, October 4, 2019.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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