Congress created the
Under the law, employees can’t lose their jobs because they take .
But the law also makes it clear that employees don’t get special protection by taking FMLA leave. An employer is allowed to fire, demote, transfer or otherwise change employment terms and conditions even while an employee is on leave—if the employer can show it would have made the same employment decision anyway.
For example, an employee about to be terminated for stealing from the company won’t save her job by going out on FMLA leave. That would be tantamount to giving her more rights than other employees in her situation have.
That doesn’t mean, however, that employers can manipulate the law to terminate employees for taking FMLA leave by trumping up charges. As the following case shows, courts grow very suspicious when employers come up with reasons to fire employees who are on FMLA leave. And they often send such cases to trial, leaving employers at the mercy of juries.
Recent case: Scott Schafer worked for a regional transportation agency with strict attendance and other conduct rules. One of those rules required employees to fully cooperate with any back-to-work examination procedures after missing work because of illness or job-related injuries.
Schafer submitted a doctor’s note indicating he had been unable to work for several shifts, and he requested FMLA leave to cover the time off. Because Schafer was close to the end of his absence allowance under a no-fault attendance policy, the agency demanded he undergo a fitness examination. Schafer went to the appointment, but bristled at the doctor’s demand for a list of the medications he was taking.
What happened next is at the heart of a pending lawsuit Schafer brought. Schafer claimed the doctor canceled the appointment and walked out when Schafer asked why he wanted the prescription list. The doctor said Schafer was uncooperative and canceled the appointment himself.
Meanwhile, HR approved FMLA leave based on Schafer’s own physician’s certification. HR also removed Schafer’s previously earned absence strikes from his record. But then the agency fired Schafer for allegedly walking out of the fitness exam, thereby breaking a rule that required employees to cooperate with directions.
Schafer sued, alleging retaliation and interference with FMLA leave. The court said the case should go to trial because there was conflicting evidence—the company said Schafer refused to cooperate and Schafer said the charges were trumped up to punish him for taking FMLA leave. A jury will decide. (Schafer v. Regional Transportation District, No. 07-CV-003400, DC CO, 2008)
Advice: Don’t try to fire an employee who is on FMLA leave unless you can clearly show you would have done so regardless of his leave status.
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