Firing shortly after follow-up FMLA care may be retaliation

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in Employment Law,Firing,FMLA Guidelines,Human Resources

As more time passes after an employee takes FMLA leave, courts grow less and less likely to link an adverse employment action to taking leave. That means employees have a harder and harder time proving that being fired, for example, was retaliation for exercising their FMLA leave rights.

But be careful. If you fire someone shortly after he has a follow-up medical appointment related to an old FMLA-covered condition, the retaliation clock could start ticking again. A court could link the incident back to the original leave and see possible retaliation. As the following case shows, that may be enough to send the case to a jury trial.

Recent case: Robert Moll worked as an engineer for Tyco Healthcare when he injured his foot. The injury led to an infection and Moll needed a skin graft plus surgery. He took FMLA leave.

After he returned, his supervisors began complaining about his work performance. Because business was brisk, they also instituted an 80-hour workweek. Finally, six months after Moll returned from FMLA leave, he was discharged. But the termination came a day after he took approved time off for a follow-up medical appointment. He sued, alleging retaliation for taking FMLA leave.

Tyco argued that there was nothing to link the FMLA leave months earlier to the discharge. The trial court disagreed. It concluded that the follow-up was connected with the original leave, and the almost immediate termination after that medical appointment could imply a “causal connection” between Moll’s earlier FMLA leave and his termination. A jury will decide whether that’s the case. (Moll v. Tyco Healthcare, No. 1:06-00046, SD OH, 2008)

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