Do you have to consider an employee on FMLA for a promotion? Court says …

While you don’t have to pay employees for the FMLA leave they take, you still have to be aware certain pay-related issues while they’re on leave. And as one company recently found out, not doing so can prove to be very, very costly.

Following a DOL investigation against the Michigan Department of Health and Human Services (DHHS) and the Kalamazoo Psychiatric Hospital, a court determined the two organizations were guilty of FMLA interference and retaliation against a nurse who had requested and been approved for intermittent FMLA leave.

Qualified but not considered

Here’s what happened: After being granted intermittent FMLA leave on two occasions to care for two seriously ill family members, a nurse claimed the Kalamazoo Psychiatric Hospital and DHHS still expected him to perform the duties of full-time employee while he was on leave. Plus, he said his employer refused to even consider him for a promotion simply because he was on leave, even though he was qualified for the expanded role.

A court determined that these actions violated the FMLA. As the court pointed out, the FMLA prohibits employers from discriminating or retaliating against any employee who’s on leave or from discouraging that employee from taking FMLA altogether.

Discriminatory behavior can include refusing to promote an employee who’s on leave or discouraging the worker from taking leave altogether. By refusing to even consider the nurse just because he was on leave and expecting him to also perform the duties of a full-time employee, the hospital was clearly guilty of both FMLA interference and retaliation.

And because of this, the nurse was entitled to what he would have earned if he had been promoted. As of right now, the worker is slated to get $30,513 in back wages and damages.

Bottom line: If it appears the FMLA played any factor at all in a company’s decision to pay an employee a lower salary — even in the form of a denied promotion — or make that worker subject to some other negative employment action, the company could easily wind up violating the FMLA — and wind up on the hook for some serious cash as a result.