No FMLA Violation for Requiring Employees to Catch Up on Their Assigned Work


An employee can be required to catch up on work that they did not perform while on FMLA leave, according to the U.S. Court of Appeals for the Third Circuit. But employers should not impose such expectations unreasonably.

Under the FMLA, when an employee returns from leave, they must be restored to the same or equivalent position, meaning one that is virtually identical in terms of pay, benefits, and working conditions. In Drizos v. PNC Investments LLC, a financial adviser took a three-month FMLA leave, during which time others managed his portfolio of accounts. However, approximately 70 accounts became delinquent. When he returned, he was directed to bring those delinquent accounts up to date. He did not ask for assistance, and his manager gave him multiple extensions to complete the work. Following his termination for multiple violations of the call-in policy, he sued for violations of the FMLA, including a claim that the employer allowed his work to accumulate during his leave and then required him to complete it upon his return, which significantly increased his workload such that he did not return to an “equivalent” position.

The Third Circuit rejected the employee’s argument, stating that, “The FMLA provides that an employer must reinstate an employee to an equivalent position after leave, not that their leave has no impact on their work.” The Third Circuit found that asking the employee “to perform tasks that he traditionally performed but had accumulated in his absence, while receiving the same pay and in the same position and multiple extensions to complete this work, does not constitute interference under the FMLA.”

While this case is good news for employers (in the Third Circuit, but perhaps also elsewhere) in affirming that they do not have to excuse employees from doing work that was left undone during their FMLA leave, they should also be mindful that requiring such catch-up work should be subject to reasonable conditions. It could very well be a violation of the FMLA if the catch-up work meant that the employee had to work longer hours or had some other negative impact on their working conditions. In this case, it was important that the employer provided enough time – with multiple extensions – for the employee to accomplish the work. And had the employee asked for assistance, it would have been sensible for the employer to try to work out some reasonable way to help the employee perform the catch-up work.