How school bullying leads to an FMLA claim
Key to remember: An employee/mother needed leave to care for her daughter who was subject to bullying that resulted in a serious health condition.
Applies to: Private employers with 50 or more employees, and all public employers.
Impact to customers: Employers need to see that life situations can lead to a need for FMLA leave.
Possible impact to JJK products/services: This is a news item.
The FMLA entitles eligible employees up to 12 weeks of job-protected leave for a variety of reasons, and interestingly, many of life situations can lead to a need for that leave.
Case in point
An employee/teacher (we’ll call her Michelle) had a daughter/middle-school-aged student (we’ll call her Emmy), began being bullied and threatened by a classmate (we’ll call him Lonnie). Michelle complained about the bullying, but, unfortunately, the school administrators did not take action to address the matter. This even though, apparently, Lonnie was known to exhibit less than kind behavior toward others, including Emmy.
The teacher and principal even had a code word that could be used when Lonnie became violent. When the teacher used that word, the students in the class were to immediately evacuate to another classroom.
During one confrontation, Lonnie threatened Emmy, telling her “When I am older, I’m going to murder somebody. Somebody that used to annoy me, somebody like you.” The class teacher submitted a report, which should have initiated an investigation. Michelle inquired about the investigation but got no response. About a month later, Emmy was forced to face Lonnie while he was made to apologize to her. This terrified Emmy even more. The principal told Emmy that “This is how the world is.”
This continued for about two years, which led to Emmy to develop severe depression and anxiety and caused her to miss school. Michelle requested and was approved for intermittent FMLA leave to care for Emmy. Even though Michelle left plans for substitutes, the district frequently called her to demand that she develop new or additional plans while she was out on leave.
Michelle and Emmy eventually transferred to a new school, which complained about Michelle’s inability to work while on leave, even to colleagues. Michelle was also told to predict when she might need leave — an impossibility given Emmy’s needs.
Michelle indicated that the district’s demands that she perform work while on leave and other conditions were interfering with her ability to care for Emmy. In response, she was told that she had to resign, otherwise, she would be fired. She did resign, then she filed a claim.
The employer made a few missteps in this situation, beyond not handling the bullying complaint. A big one regarding the FMLA is mandating that Michelle work while on leave — a illegal action on its own. Predicting leave was also too great a demand.
The claim not only names the school district, but also the principal and assistant principal of the school Emmy attended, showing how employee/plaintiffs can go after individuals as well as employers.
Cox v. Lewis, et al., U.S. District Court of Nevada, No. 2:20-cv-01792, filed 9/25/2020.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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