Retaliation After Taking Family or Medical Leave
The Family and Medical Leave Act Requires An Employer to Grant Leave To An Employee For Certain Medical or Family Reasons
The Family and Medical Leave Act of 1993 (“FMLA”) is a federal law which allows employees to take up to twelve weeks of unpaid leave per year for qualified medical and family reasons. Although the leave is unpaid, the primary protection offered by the ADA is that the employee’s job is protected while on leave—which simply means that the employee must be restored to his original job or to an equivalent job (including the same pay, benefits and other terms and conditions of employment).
Illness or Medical Treatment for the Employee or a Family Member, or the Birth or Adoption of a Child, Can Qualify An Employee for FMLA Leave, Even Though It May Be Inconvenient For the Employer
The FMLA can be a great boon to employees requiring serious medical treatment or having other situations which entitle them to take this leave. Unfortunately, managers or business owners are often not quite as excited about the law, because it imposes additional scheduling, hiring and other administrative burdens on them. Although the FMLA allows employees to take leave for happy life events such as the birth or adoption of a child, it is often used by employees in less favorable circumstances, such as a major illness, injury, or surgery, or caring for a loved one who is sick or injured. Common sense might indicate to managers that it would be preferable to get rid of an employee who will make their life more difficult in this way.
The FMLA and Federal Regulations Prohibit an Employer From Firing An Employee In Retaliation For Having Taken FMLA Leave
Fortunately for employees, Congress (which enacted the FMLA) and the Department of Labor (which enforces it) realized that a law requiring an employer to allow an employee to take leave would be rendered meaningless if the employer were allowed to simply fire the employee upon her return from leave. To address this, the Act prohibits employers from discharging or in any other manner discriminating against an individual for opposing any practice made unlawful by the act. See 29 U.S.C. § 2615(a)(2). Although this section of the statute is hampered by awkward phrasing, the Department of Labor has clarified it, by interpreting this part of the Act to mean that employers are forbidden from terminating employees for having exercised or attempting to exercise FMLA rights. See 29 C.F.R. § 825.220(c).
Employees Returning From Leave Often Enounter Hostility or Resentment from Managers and Employers
Unfortunately, even with this protection in place, employees returning from leave are often subjected to treatment or comments making them feel less valued by their employers. When the employee is subsequently terminated, it raises the question of whether the employer simply did not want to deal with an employee who could be gone for weeks at a time. Although it is true that Arizona law allows an employer to fire an employee for almost any reason, or for no reason at all, employers are still required to obey the law, including the FMLA. Therefore, if an employee is fired soon after she returns from family or medical leave, or if there appears to be no reason other than hostility for having missed so much work, then the employee may have been wrongfully terminated.
Job Security Is One Of The Primary Purposes of the Family and Medical Leave Act
Employees who qualify for the protections of the FMLA should not have to worry about their job security if they find themselves in a position which requires them to take leave. If the circumstances surrounding an employee’s termination indicate that it was caused, at least in part, by their employer’s or manager’s dissatisfaction over the employee’s FMLA leave, then the employee should consult with a wrongful termination lawyer.
Rex A. Christensen practices employment discrimination law in Gilbert, Arizona. He can be reached at (480) 378-2400.
This article does not constitute, and should not be considered, legal advice, and you should consult with an attorney regarding your own specific legal matters. The existence of this article or your reading of it does not create an attorney-client relationship. Neither the Christensen Law Firm nor any of its attorneys may represent you without first establishing that doing so will not create a conflict of interest.
Rex A. Christensen is licensed to practice law in Arizona only.