The Family and Medical Leave Act (FMLA) entitles employees of covered employers to take unpaid, job-protected leave for qualifying family and medical reasons.

Covered Employers

The FMLA applies to all public agencies (including state, local, and federal employers), local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

Protected Actions Under the FMLA

The FMLA and Department of Labor regulations expressly prohibit retaliating against an employee or prospective employee for exercising rights protected under the FMLA. What does FMLA retaliation look like and how can employers avoid such a claim?

First, consider whether an employee or prospective employee has exercised a protected right under the FMLA or indicated an intent to exercise a protected right under the FMLA. More specifically, has the employee or prospective employee:

  • Taken protected leave under the FMLA
  • Attempted to take protected leave under the FMLA
  • Indicated an intent to take protected leave under the FMLA
  • Filed a charge, lawsuit, or other proceeding related to any right under the FMLA
  • Indicated an intent to file a charge, lawsuit, or other proceeding related to any right under the FMLA
  • Given any information in connection with any inquiry or proceeding related to any right under the FMLA
  • Indicated an intent to give any information in connection with any inquiry or proceeding related to any right under the FMLA
  • Testified in connection with any inquiry or proceeding related to any right under the FMLA
  • Indicated an intent to testify in connection with any inquiry or proceeding related to any right under the FMLA

Prohibited Retaliation

If the employee or prospective employee has engaged in any of the above activities, the employer should avoid any action that could be deemed retaliatory. Retaliatory conduct could take the form of any of the following actions:

  • Failure to hire
  • Delayed hiring
  • Failure to promote
  • Delayed promotion
  • Demotion as to pay and/or job duties
  • Unfavorable job reassignment
  • Loss of seniority
  • Exclusion from meetings/communications/projects/team activities
  • Cutting/reducing benefits
  • Delaying benefits
  • Imposition of unrealistic work expectations
  • Denial of resources
  • Negative performance evaluation
  • Disciplinary action
  • Counting an employee's FMLA leave under a "no-fault" attendance policy where accumulated points/occurrences lead to discipline
  • Harassment/hostile work environment created in connection with an employee's use of FMLA leave (including negative comments made by employees or management)
  • Any other action that materially and negatively affects the terms and conditions of an employee's employment
  • Termination

Conclusion

Because actual or perceived FMLA retaliation can lead to significant potential legal liability for employers, it is always advisable to handle FMLA situations with extreme care. Employer-Lawyer is available to provide guidance to ensure employers are in full compliance with the FMLA.