FMLA Retaliation or Interference

The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year for:

• the birth of a child and to care for the newborn child within one year of birth;
• the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
• to care for the employee’s spouse, child, or parent who has a serious health condition;
• a serious health condition that makes the employee unable to perform the essential functions of his or her job;

The leave can be taken intermittently or on a reduced schedule, such as taking leave in separate blocks of time or working fewer hours per day or week, if medically necessary or otherwise permitted. Employers can request certification from a healthcare provider to support certain FMLA-qualifying reasons for leave.

Under the FMLA, an “eligible employee” is one who:

(1) has been employed by the employer for at least 12 months;

(2) worked a minimum of 1,250 hours during the 12 months immediately preceding the start of the requested leave; and

(3) worked at a worksite at which the employer employs more than 50 employees or employs more than 50 employees within 75 miles of the worksite. However, if you work remotely, and the company’s headquarters are more than 75 miles away, you may still be eligible, depending on certain factors.

FMLA leave is generally unpaid, although employees may be able to use accrued paid time off concurrently with their FMLA leave.

Although it is preferable, it is not required that you request FMLA in writing or even that you specifically use the words “FMLA”.  If your employer has verbal notice sufficient to make them aware that you are seeking leave for a serious medical condition or other FMLA-qualifying leave, the responsibility falls on the employer to inquire further and seek out the necessary information to consider requested leave as FMLA leave.

When you return to work after taking leave, the FMLA states that you are entitled to be restored to the position you held before the leave or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

FMLA RETALIATION

It is illegal for your employer to retaliate against you for exercising your FMLA rights. To establish FMLA retaliation, you must show that (1) you engaged in protected activity; (2) your employer took an adverse action against them; and (3) a causal connection exists between the protected activity and the adverse action.

An adverse action is any action by the employer that is likely to dissuade a reasonable employee from exercising their legal rights. This standard means that a broader range of employer actions can qualify as adverse actions. Examples of actions considered adverse include:

• Termination or demotion
• Giving poor performance reviews because an employee used FMLA leave.
• Discipline or suspension
• Denying overtime or promotion
• Reducing or changing pay or hours
• Reassignment to a less desirable position or actions affecting promotion prospects (like excluding an employee from training meetings)
• Increased scrutiny or micromanagement
• Creating a hostile work environment through actions like harassment, isolating, or ostracizing an employee

Unfortunately, exercising your FMLA rights does not shield you from discipline or discharge if your employer has legitimate reasons. But your employer must have a non-retaliatory and non-discriminatory reason for their actions. Your employer cannot make up a reason to terminate you when the real reason is that you took FMLA leave. The burden is on the employee to demonstrate that the employer’s reason for termination is a pretext, meaning a dishonest reason not based on facts.

FMLA INTERFERENCE

It is illegal for your employer to interfere with your FMLA rights by taking action to prevent you from exercising your rights under the FMLA.

To establish FMLA interference, you must demonstrate that (1) you are entitled to an FMLA benefit, (2) your employer interfered with the provision of that benefit, and (3) that interference caused harm.