Bradley & Riley PC


Employers who move too aggressively to designate leave as counting for FMLA purposes may face situations where employees prematurely run out of leave, and then sue their employer as a consequence.  Courts have begun addressing this type of "involuntary leave" claim.

The Family and Medical Leave Act provides that an eligible employee may take up to 12 weeks of leave each year to, among other things, obtain care for the employee's serious health condition.  If a serious health condition requires leave exceeding 12 weeks, the employer generally can end the employment relationship.

Employers often want to designate health-related absences as qualifying for FMLA purposes, because this runs the meter on the 12-week entitlement.   But what happens if a health-related absence that appears serious doesn't meet the FMLA definition for a serious health condition?  If the employer mistakenly counts the leave as FMLA-qualifying, this can result in the employer running  the 12-week entitlement when it shouldn't.


Employees have been filing claims alleging that their employer did exactly this.   In particular, employees claim that their employer interfered with their FMLA rights by making them take more leave than they needed or requested, and then terminated their employment after their FMLA leave supposedly was exhausted.  See Hearst v. Progressive Foam Technologies, Inc., 682 F.Supp.2d 955, 967 (E.D. Ark. 2010).  This is known as an "involuntary leave" claim.

Such a situation will arise only in rare circumstances, namely when an employee exceeds the 12-week entitlement, but part of the leave should not have been designated as FMLA-qualifying.   The risks to an employer, however, can be significant: damages for lost wages, liquidated damages, and attorney's fees.

The lesson for employers is that they should evaluate each leave request against the standards and definitions in the FMLA, and should not hastily designate leave as FMLA-qualifying, particularly if the employee disagrees.

For more information please contact Attorney Vernon Squires at

Categories: Employment Law

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