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Employees on Extended Leave Can Be Required to Make Up Missed Work

    Client Alerts
  • August 10, 2023

The Family and Medical Leave Act (FMLA) provides covered employees with up to 12 weeks of job-protected leave, if they or a close family member have certain medical conditions. Last week, the Third Circuit Court of Appeals addressed whether an employee who takes FMLA leave can be required to perform some additional work upon return in order to catch up from their leave.

In Drizos v. PNC Investments LLC, the plaintiff was a financial advisor who suffered from alcoholism. He took intermittent and then continuous FMLA leave to seek treatment. Upon return, his employer required him to review and catch up on his delinquent managed accounts.  He was later terminated for failing to follow the employer’s call-out procedures, and sued claiming interference with his FMLA rights. Among his claims, the plaintiff alleged that requiring him to work extra hours to make up for missed work constituted interference with his FMLA rights.

The Third Circuit disagreed, affirming dismissal of the lawsuit. The court noted that the plaintiff was given multiple extensions to catch up on his accounts, and was never disciplined for his failure to do so. Requiring him to perform extra work to catch up on accumulated tasks was not a failure to restore him to an equivalent position. He was in the same job, paid at the same level.  The Third Circuit noted the alternative would have been for the employer to transfer his accounts to a colleague while the plaintiff was on leave, which would have substantially reduced his income.

Employers should not read this decision as a free pass to load up employees who return from leave with extra work. In some cases, requiring an employee to make up missed work could be considered punishment for taking FMLA leave. However, the employer can require the returning employees to perform catch up work that is necessary for them to successfully continue in that position.