By Mika Shadid Tucker, JD
You must carefully consider the timing when you execute certain employment decisions that affect an employee who recently exercised her FMLA leave rights. Implementing a previously contemplated adverse employment action isn’t discrimination as long as the FMLA leave wasn’t a motivating factor.
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However, the adverse action could support an entitlement claim if it prevented the employee from being restored to the same or a similar position after she returned from FMLA leave.
The U.S. 8th Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) recently reversed a lower court’s decision to dismiss an employee’s claims of entitlement and retaliation under the Family and Medical Leave Act (FMLA).