Employees who takedon’t enjoy greater protection than anyone else when it comes to reductions in force. If a position would have been eliminated regardless of whether the employee took leave, then the termination doesn’t violate the law.
On the other hand, it’s dangerous to change who is scheduled to be laid off after learning that an employee plans to take FMLA leave. That’s because making the change at that point looks suspiciously like punishing the employee for taking leave.
Recent case: William Shaffer worked for the American Medical Association (AMA) as a manager in charge of three speechwriters. During the economic downturn, the association experienced a drop in revenue. As a result, managers were told they had to make staff cuts. In Shaffer’s department, one position was slated for elimination, and his boss suggested which employee should be axed.
Soon after, Shaffer requested FMLA leave so he could have knee-replacement surgery. He told his superiors he would need several weeks off to recover.
After learning about the leave, Shaffer’s boss then sent another email suggesting that Shaffer should be the one to go, because the department was going to have to get along without him anyway. The AMA did, indeed, terminate Shaffer.
He sued, alleging interference with his right to FMLA leave and retaliation for requesting it.
He argued that the fact that the RIF list changed almost immediately after he announced his pending surgery was proof that his FMLA request played a crucial role. Plus, it turned out that, after learning Shaffer was suing, several AMA executives had backdated memos explaining their actions.
Based on those two factors, the court ordered a jury trial. (Shaffer v. American Medical Association, No. 10-2117, 7th Cir., 2011)