HR Management & Compliance

FMLA Retaliation or Unauthorized Use of Vacation Time?

By Shane A. Zahrt, JD, Felhaber Larson

An employee claimed she was terminated by her employer for taking time off under the Family and Medical Leave Act (FMLA) to cope with a back injury. Her employer blamed the termination on her unapproved use of vacation days. Read on to see how a federal judge used the calendar to resolve this battle of conflicting justifications.

Jennifer Disbrow began working for Oticon, a hearing aid manufacturer, in January 2010. She initially worked full-time, but she took leave in 2010 and 2012 to care for her newborn children. When she returned from her second FMLA leave, Oticon allowed her to reduce her hours based on her childcare needs.

In 2014, however, after reviewing her schedule, the company informed Disbrow that the arrangement was no longer workable and didn’t have the approval of management. The company asked her to return to full-time status but agreed to postpone the change until June to allow her to obtain childcare services.

On June 17, Oticon again requested that Disbrow resume her full-time schedule. She resisted, asking repeatedly if she could use her remaining vacation days to continue to take every Friday off. She took sick leave for the remainder of the week and provided FMLA certification that stated a back injury would keep her from working until July 14.

After she returned to work, Disbrow continued to have attendance issues that were unrelated to her FMLA leave. She was eventually terminated on July 28, 2014. She then sued Oticon in federal court, claiming she was subjected to retaliation for taking leave under the FMLA.

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