FMLA Retaliation and Wrongful Termination

An employer is prohibited from retaliating, interfering with, restraining, or denying an employee’s exercise of any FMLA right. If an employer wrongfully terminates an employee for FLMA taking medical leave, the worker could have a lawsuit against the employer.

By Brad Nakase, Attorney

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The FMLA prohibits employers from terminating an employee simply for taking leave under FMLA. An employer is prohibited from discharging, retaliating, or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA. The Department of Labor considers violations of FMLA  by retaliation to be very serious.

FMLA is short for the Family and Medical Leave Act. This is a federal law in the United States that provides eligible employees with job-protected leave for specific family and medical reasons. The FMLA tries to balance the demands of the workplace with the needs of employees to attend to their own health or care for their family members. Here are some major points about the FMLA:

Covered Employers

The FMLA applies to private employers with 50 or more employees, as well as government employers at the federal, state, and local levels.

Eligible Employees

To be eligible for FMLA leave, an employee must have worked for their employer for at least 12 months, have worked at least 1,250 hours during the previous 12-month period, and work at a location where the employer has 50 or more employees within 75 miles.

Covered Reasons for Leave

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave during a 12-month period for the following reasons:

  • The birth, adoption, or foster care placement of a child.
  • To care for a spouse, child, or parent with a serious health condition.
  • The employee’s own serious health condition that makes them unable to perform their job.
  • Certain qualifying exigencies arising out of a family member’s military service.
  • Up to 26 weeks of leave in a single 12-month period to care for a covered service member with a serious injury or illness.

Job Protection and Benefits

While on FMLA leave, eligible employees are entitled to maintain their group health insurance coverage as if they were actively working. Upon returning from FMLA leave, employees are generally entitled to be reinstated to their original or an equivalent position, with few exceptions.

Intermittent and Reduced Schedule Leave

FMLA leave can be taken in a continuous block of time or intermittently in separate periods or even on a reduced schedule when medically necessary or for certain qualifying exigencies.

Notice and Certification Requirements

Employees are generally required to provide notice to their employer of their need for FMLA leave and provide appropriate certification, such as a medical certification, to support the need for leave. Employers can require medical certification within certain time frames.

State FMLA Laws

Some states have their own family and medical leave laws that provide additional benefits or coverage beyond the federal FMLA. In such cases, employees are entitled to the more generous provisions of either the state or federal law.

It is important to consult the specific provisions of the FMLA, as well as a retaliation lawyer, to fully understand the rights and obligations regarding family and medical leave.

When can you take FMLA leave?

Under the Family and Medical Leave Act (FMLA), eligible employees can take FMLA leave for specific family and medical reasons. Here are the situations in which you can legally take FMLA leave:

Birth, Adoption, or Foster Care Placement

You can take FMLA leave for the birth of a child, to bond with a newborn, or to care for a newly adopted or fostered child. FMLA leave for these purposes must be taken within one year of the birth or placement.

Serious Health Condition

You can take FMLA leave if you have a serious health condition that makes you unable to perform your job. A serious health condition includes an illness, injury, impairment, or physical or mental condition that requires inpatient care, continuing treatment by a healthcare provider, or certain periods of absence and treatment.

Care for a Family Member

FMLA leave can be taken to care for a spouse, child, or parent with a serious health condition. The family member must have a condition that requires inpatient care, continuing treatment, or periods of absence and treatment.

Qualifying Exigencies

FMLA leave can be taken for certain qualifying exigencies arising out of a family member’s military service. These may include attending military events, making childcare arrangements, handling financial or legal matters, or spending time with a covered service member on rest and recuperation leave.

Military Caregiver Leave

FMLA leave can be taken to care for a covered service member with a serious injury or illness. This type of leave allows eligible employees to take up to 26 weeks of leave within a single 12-month period.

It is important to note that FMLA leave is unpaid, although employees may be able to use accrued paid leave, such as vacation or sick leave, to receive income during their FMLA leave. Additionally, to be eligible for FMLA leave, an employee must meet specific requirements regarding length of service, hours worked, and employer size.

Employers may require employees to provide notice and submit appropriate certification, such as medical documentation, to support their need for FMLA leave. Employees should consult their employer’s policies and procedures, as well as a retaliation attorney, to understand their rights and obligations regarding FMLA leave.

Can an employee be terminated for taking FMLA leave?

Terminating an employee solely for taking FMLA leave is illegal and constitutes a violation of the employee’s rights under the Family and Medical Leave Act (FMLA). If an employer terminates an employee in retaliation for taking FMLA leave, the employee may have grounds for legal action. Here’s what could happen in such a situation:

FMLA Retaliation Claim

The terminated employee can file a complaint or lawsuit against the employer, alleging retaliation for exercising their rights under the FMLA. The employee must demonstrate that they engaged in protected FMLA activity (such as taking qualifying leave) and that the termination was motivated by that activity.

Remedies for Retaliation

If the employee’s claim is successful, they may be entitled to various remedies, which can include:

  • Reinstatement to their former position or a substantially equivalent position.
  • Back pay, which includes wages and benefits lost due to the termination.
  • Front pay, if reinstatement is not feasible or desirable.
  • Compensatory damages for emotional distress caused by the termination.
  • In some cases, punitive damages may be awarded to punish the employer for willful violations.
  • Attorney’s fees and legal costs incurred by the employee in pursuing the claim.

Administrative or Legal Process

The terminated employee can choose to pursue their claim through administrative channels by filing a complaint with the U.S. Department of Labor’s Wage and Hour Division (WHD) or a state labor agency. Alternatively, they can file a lawsuit directly in court. Consulting with an employment law attorney is advisable to understand the specific legal process and navigate the complexities involved.

It is important to note that the termination of an employee who has taken FMLA leave may be lawful if there are legitimate reasons unrelated to FMLA leave for the termination. However, if it can be shown that the termination was primarily motivated by the employee’s use of FMLA leave, it would be considered illegal retaliation.

If an employee believes they have been terminated in violation of their FMLA rights, they should document the circumstances, gather any relevant evidence, and consult with an employment law attorney to understand their legal options and pursue appropriate remedies.

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