Thetries to balance the rights of employees to take protected leave and the rights of employers to efficiently run their businesses. Employees must give their employers as much notice as possible before taking leave. In return, the law protects them from possible adverse action by employers.
Bottom line: Once an employer knows an employee will need, it cannot use that knowledge to the employee’s disadvantage. That’s true even if it’s only possible that the employee may need leave.
It raises serious suspicions about your motives if you fire an employee shortly after he delivers notice he may need FMLA leave—and practically guarantees a lawsuit. If you must discipline or discharge the employee, make absolutely sure the reason is bulletproof. Otherwise, you may lose an FMLA interference and retaliation lawsuit.
Recent case: James Sarnowski, who worked as a service manager for Air Brook Limousine, regularly got good reviews. About a year after taking the job, he underwent heart surgery and was off work for about six weeks.
About a year later, his doctors told him they wanted to check his heart again. Depending on the results, Sarnowski might need further heart surgery. Sarnowski told his boss right away, explaining that he might be out for six weeks. The company fired him one week later, citing performance issues.
He sued, alleging interference with his. The company tried to argue that Sarnowski didn’t trigger the FMLA just because he explained he was undergoing testing.
The 3rd Circuit Court of Appeals disagreed. It said Sarnowski did notify his employer he might need FMLA leave when he explained the heart monitoring. From that instant, the court ruled, he was protected. It ordered a trial to decide whether Air Brook Limousine, by firing Sarnowski, interfered with his right to take FMLA leave that neither party was sure he would need. (Sarnowski v. Air Brook Limousine, No. 06-2144, 3rd Cir., 2007)
- Don't fear informal ADA accommodation: You can still challenge disability later
- It's an emergency! Can we fire worker whose volunteer firefighting duties cause absences?
- DOL issues new FMLA poster: Get your free copy here
- Can we fire employee because he was arrested?
- Could we be penalized for misclassification?