It is a common practice to require a departing employee to sign a severance agreement and general release before giving the employee a severance package. That agreement will generally include a provision that releases an employer from any legal claims the employee may have against your company. The 4th Circuit ruled that a U.S. Department of Labor (DOL) regulation which prohibits employees from waiving or releasing their rights under the FMLA without court or DOL approval applies to retrospective and prospective claims and it prevents both the waiver of both substantive and prospective rights. Therefore, a release that includes a waiver of FMLA rights without prior approval from a court or the DOL, does not constitute a valid waiver of the employee’s FMLA rights. Taylor v. Progress Energy, Inc., 415 F.3d 364 (4th Cir. 2005).
This case illustrates the necessity of being cautious when you ask an employee to release you from FMLA claims. The 7th Circuit (which covers Indiana) isn’t bound by the decisions of the courts in other circuits, so it may or may not follow the 4th Circuit’s reasoning. The 7th Circuit hasn’t addressed this issue yet.
Permalink
One of the questions we often get from employers is how to control FMLA leave because it seems so easy for employees to take leave under the FMLA. After thinking this question through, we feel the following tools can be used to manage suspected abuse of FMLA leave.
- Obtain as much information as possible directly from the employee when the employee requests leave.
- Provide the employee’s health care provider with a list of essential functions rather than relying on the employee to provide the information.
- Insist on complete medical certifications.
- Require certifications as often as permissible.
- Use an employer designated health care provider to consult with on questionable cases.
- Require an employee to use paid time off for FMLA leave.
Permalink
