Leave Management, Policy, and Compliance

Terminating Employees and Preventing FMLA Retaliation Claims

Employees may bring two types of Family and Medical Leave Act (FMLA)-related claims against their employers: first, interference with their rights under the FMLA, and, second, retaliation against them for requesting time off under the FMLA, exercising rights under it, or making a claim.

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Both individuals and organizations may be liable for FMLA violations. Claims must generally be filed within 2 years from the date of the adverse action (firing, demotion, denial of time off, etc.). In the case of willful violations, employees have 3 years to file claims.

Retaliation

Unlawful retaliation under the FMLA basically involves punishing an employee for taking FMLA leave. Unlike interference, employees must prove that you intended to retaliate against them. Examples of retaliation would include:

  • Not promoting an employee who otherwise would be promoted
  • Imposing unwarranted discipline or termination
  • Denying an employee on FMLA leave benefits given to those who aren’t on FMLA leave
  • Using an employee’s FMLA leave as a negative factor in employment decisions

To make an initial claim of retaliation, an employee must show:

  • He engaged in protected activity.
  • Adverse action was taken.
  • The adverse action was causally connected to the protected activity (for example, taking FMLA leave).

You then must show that you had a legitimate business reason for the adverse action. Once you do that, the burden shifts to the employee to show your reason was pretextual (or simply a cover-up for unlawful discrimination based on his use of FMLA).

Perhaps the best way to prevent retaliation claims is to give employees plenty of notice about your policies, enforce them consistently, and document your actions well.

Many of the same steps to prevent interference claims also will help you to prevent retaliation claims under the FMLA. These include the following:

  • Make regular training a priority for supervisors and managers.
  • Educate your staff about the need for care in casual remarks and e-mails. Make sure they know not to express disapproval of the FMLA or employees who take FMLA leave, and not to offer their “medical” opinions on the validity of employees’ reasons for FMLA use or otherwise speculate on whether employees’ leave is legitimate. That’s what medical certification and doctors are for.
  • A stubborn insistence on the opinion of your organization’s healthcare provider (to the exclusion of other opinions) can spell liability for employers. The FMLA has its own procedures for obtaining medical opinions, including second and third opinions, and you must use them.
  • Don’t treat an employee exercising FMLA rights differently or less favorably than other employees; enforce and apply your policies and rules consistently. Letting others slide while enforcing the rules to the letter on someone taking FMLA leave is asking for trouble and a clear signal of illegal retaliation. Follow your regular disciplinary procedures consistently.
  • Take care with temporary transfers of employees using intermittent leave and with job restoration after FMLA leave, to ensure that they aren’t perceived as retaliatory. For example, don’t transfer an employee to a less desirable or lower-level position simply because she has taken FMLA leave.
  • The regulations specify circumstances in which an employee can be reassigned, and they don’t include “punishing” employees for exercising their rights, even if it’s inconvenient for the employer. Instead, make an effort to work cooperatively with the employee to “problem solve” in an effort to address and resolve issues that the legitimate use of intermittent leave may raise.
  • Don’t transfer problems. Don’t tell an employee that a supervisor’s harassing or retaliatory behavior will stop if the employee agrees to a transfer. Tell the supervisor to stop the bad behavior and/or face discipline in accordance with your policies.

Keep in mind the greater rights and obligations that the Americans with Disabilities Act (ADA) may impose when the reason for taking FMLA leave also constitutes a disability within the meaning of the ADA.