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How Can You Investigate Employee Misconduct While Someone is on FMLA Leave?

Employers can have a hard time knowing how to handle an internal investigation or disciplining an employee while that employee is taking time off under the Family and Medical Leave Act (FMLA). However, employees are not allowed to use FMLA leave as a shield from discipline for legitimate incidences of wrongdoing.

In one recent case, a middle school teacher was involved in a physical incident with a student in the hallway of a school. The student claimed the teacher grabbed her arm, shook her and then pinned her up against a wall. The teacher, however, had a different story, and after a mandatory investigation by child protective services, the teacher was cleared of wrongdoing. According to district policy, the school board conducted an investigation into the incident as well, which focused on whether the teacher violated any policies of the district during the interaction.

During the school board investigation, the teacher took FMLA leave, citing anxiety, stress and high blood pressure. He was back to work off and on during the following months, but began to have panic attacks at work after the principal “berated” him. While he was on leave, the school demanded he report to work to participate in the board’s investigation and attend a disciplinary hearing, where he was given a written reprimand for using physical contact to escalate a situation with a student.

Eventually, the teacher obtained a doctor’s note requesting to be assigned to a different school in the district to prevent further panic attacks. The district fulfilled the request, and he returned to work after exhausting his FMLA leave. He later sued the district, claiming it interfered with his FMLA leave by requiring him to participate in the investigation, attend appointments with doctors outside of his own physician and return to a school that had students with behavioral issues.

These claims were all quickly dismissed by a trial and appellate court, with a ruling that employers are indeed allowed to request employees to participate in investigations during FMLA leave, within reason.

For more information about FMLA issues and how they impact internal investigations, work with the knowledgeable Dallas whistleblower attorney Steve Kardell at Whistleblower Law for Managers.

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