What do you do?

Multiple choice:

(a) let her take the leave and find a way to manage without her; (b) flat out deny the leave, since she is essential to your operations; (c) try to persuade her to keep working on the project while she’s at home on leave, but continue to pay her.

Unless you chose option A, you could be looking at an FMLA interference claim.  The employer in Evans v. Books-a-Million (BAM) chose option C and is now getting ready to defend itself before a jury.

Ms. Evans was a payroll manager for BAM.  BAM was implementing a new payroll system when Ms. Evans requested FMLA leave after the birth of her child.  Because BAM really, really needed her help, it persuaded Ms. Evans to work on the project from home.  She reluctantly did so, but not to her supervisor’s liking.  Accordingly, upon her return she was offered a different position, one that required a lot of travel.  Being a new mom and all, Ms. Evans did not want the new position.  Thus, BAM terminated her employment.

Not at all surprisingly, Ms. Evans sued for FMLA violations.  While the lower court tossed the case on summary judgment, the appellate court reversed, sending the case to a jury trial.

The takeaway should be pretty obvious: if an employee is on an FMLA leave, don’t persuade (read, coerce) him or her to work.  FMLA leave is meant to be what it sounds like – time away from work.