Has your employer retaliated against you for using FMLA leave?

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Posted by Legal Team On August 15, 2022

It is illegal for employers to retaliate or discriminate against an employee who uses FMLA leave.

A federal law called the Family Medical Leave Act (better known as the “FMLA”) allows employees of a qualifying company to take up to 12 weeks of unpaid, job-protected leave in order to deal with, recover from or provide care for their own serious medical condition or that of a dependent. Pursuant to the FMLA’s protections, an employee cannot be fired for taking medical leave and he or she must be returned to the same position – or a substantially similar/equivalent one, without loss of pay, hours, benefits or key responsibilities – held prior to taking the leave. The FMLA also ensures that the employee’s employer-provided health insurance benefits will continue uninterrupted during any leave period.

In addition, employers are prohibited from taking “adverse action” against their employees in relation to FMLA leave. Any such retaliatory or discriminatory action related to an approved FMLA leave could be actionable in court.

Examples of adverse action

In the context of FMLA claims, adverse action is defined similarly to how it is used in other employment law contexts; it is a negative action that impacts any part of the employer/employee relationship. This can include:

  • Wrongful termination (firing an employee because he or she took FMLA leave)
  • Hiring (refusing to hire someone because he or she had taken FMLA leave at a previous job)
  • Promotion/demotion decisions (demoting someone or refusing to promote an otherwise qualified and deserving employee because he or she took or inquired about taking FMLA leave)
  • Loss of benefits (this can be anything from insurance coverage and retirement fund matching to “perks” like company cars or employer-provided cellphones)
  • Loss of responsibilities (taking away key job duties from employees returning from FMLA leave when the loss of those duties isn’t mandated by the employee’s health condition; this wouldn’t apply if, for example, an employee returning from leave can no longer lift heavy boxes and is given a “desk job” to better accommodate his medical needs)
  • Inability to pursue promotion opportunities/engage in career development
  • Singling out the employee for disparate treatment (this can include such varied actions as physically relocating the employee’s desk/office away from colleagues, or social isolation like purposefully not inviting the employee to meetings or outings)
  • Negative disciplinary action not directly related to job performance (“writing up” an employee or putting a notation in his or her employment record in relation to taking FMLA leave)
  • Counting FMLA-covered absences toward no-fault work attendance policies used to terminate at-will employees

Further prohibited FMLA-related actions

According to the U.S. Department of Labor, under Section 105 of the FMLA ( Section 825.220 of the federal FMLA regulations), employers also aren’t allowed to prevent, discourage or interfere with an employee’s attempt to take FMLA leave, nor can they manipulate work hours so that employees no longer qualify for FMLA protections.

If you’ve attempted to exercise your right to take FMLA leave, or you have taken leave, and been subjected to retaliatory action, you may have a legal claim against the company. To learn more about possible legal options at your disposal to fight back against your employer’s wrongful actions, contact an experienced employment law attorney at The Armstrong Law Firm. Call their San Francisco law office at (415) 909-3945 , or send an email to schedule a consultation.