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FMLA leave-Takers aren’t untouchable, but courts will look closely at timing

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in Employment Law,Firing,FMLA Guidelines,Human Resources,Office Management,Payroll Management

Employers that come down hard on employees who have just requested FMLA leave are looking for trouble—especially if the employee was performing well until recently. The timing will look suspicious.

Recent case: Faisal Rashid, who is from Pakistan, lost his job with Sovereign Bancorp just two days after he informed his supervisor that he needed time off to return to Pakistan because his mother was ill. Until the meeting at which he made the request, his performance had been satisfactory.

Since Rashid had used up his paid vacation, he asked for unpaid time off. When the supervisor told him that it would be unfair for him to have more vacation than others, even if he took it as unpaid leave, Rashid said he needed the time to care for his mother, who was facing surgery.

That’s when the supervisor started criticizing Rashid’s work, and the two got into a heated discussion. Two days later, Rashid was fired for poor behavior. He sued, alleging he had really been fired for asking for FMLA leave.

The trial court sent the case to trial. It reasoned that the timing was highly suspect, and that a jury might see the sudden scrutiny and the firing for alleged poor behavior as retaliation and interference with the right to leave. (Rashid v. Sovereign Bancorp, No. 07-1056, ED PA, 2008)

Final note: Nothing in the FMLA prevents leave to go overseas to care for a parent, spouse or child. In fact, employees can use FMLA to travel overseas for their own treatment, too. Employers, however, are still entitled to medical certifications.

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