This provision gives employers greater staffing flexibility by enabling them temporarily to transfer employees who need intermittent leave or leave on a reduced schedule to positions that are more suitable for recurring periods of leave. Under such circumstances, no recovery of premiums may be made by the employer if such employee has chosen to take or continue leave after receiving such notice. Finally, an absence caused by substance abuse which is not being treated does not qualify for FMLA leave. Under both the FMLA and the ADA, employers may still terminate employees for current illegal drug use. This includes requesting employers to submit their books and records for inspection.
Violations are punishable by injunctive and monetary relief.
For employers who violate the law, monetary damages include an amount equal to the wages, salary, employment benefits, or other compensation denied or lost to an employee. Interest on any judgment is permitted. In the event a willful violation is proved, employers are liable for additional damages equal to the amount of the award. This might occur, for example, after receiving a lawyer's written opinion that the company was not violating the law after being notified by an employee that a violation was, in fact, being committed. Thus, it is important to request and save all favorable written opinions from counsel for this purpose.