You’re asking for trouble if you consider
Courts view such decisions as direct evidence of retaliation—which makes it almost impossible for the employer to win a lawsuit. The employer would have to show that it would have made the same decision even if it hadn’t wrongly used the leave as a factor.
Recent case: Eunice Hunter worked for the Valley View School District as a night custodian. She was involved in a serious car accident and had to have a series of operations. To minimize disruption to the school where she worked, Hunter made it a point to take during summers when kids were out of school.
After her final operation, her doctor cleared her to return to work, but with lifting restrictions.
That’s when the school district decided to place her on involuntary medical leave. The superintendent wrote to Hunter explaining that the district based its decision on two factors: her inability to perform the essential functions of her job and excessive absences over the past four years.
Hunter sued, alleging the district had retaliated against her for taking FMLA leave.
During a deposition, the superintendent admitted that Hunter’s FMLA absences had been included in the absence tally and insisted that the district couldn’t afford to have employees absent for such long periods of time.
The school district argued that it would have placed Hunter on medical leave even if it had not counted her FMLA time against her because she was unable to return without restrictions. The lower court bought the argument and dismissed the case.
Hunter appealed, and the 6th Circuit Court of Appeals reversed the decision. It reasoned that the superintendent’s admission that FMLA leave was counted against Hunter was direct evidence of retaliation for taking FMLA leave. The appeals court ordered a trial.
The district will now have to convince a jury that it would have put Hunter on involuntary leave even if it hadn’t considered her FMLA leave when it made the decision. (Hunter v. Valley View Local Schools, No. 08-4109, 6th Cir., 2009)
Final notes: Be sure to cover the FMLA in any supervisory training you conduct. Managers and supervisors must understand they cannot use FMLA leave as a factor when making work decisions. Doing so is an invitation to litigation. Be especially sure they understand that the courts don’t care how much it costs to replace an employee who takes FMLA leave. The leave is a legal entitlement and it is the employer’s responsibility to make sure eligible employees who want to take FMLA leave can do so without fear of retaliation or job loss.
Finally, insist that someone in HR reviews any correspondence sent to employees, such as the letter Hunter received. Because the letter mentioned excessive , Hunter suspected the school district was counting her FMLA leave against her. If someone in HR had reviewed that letter first, this lawsuit might have been avoided.
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