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Discharging employee after FMLA leave expires may be retaliation

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in Employment Law,Firing,FMLA Guidelines,HR Management,Human Resources

Eligible employees are entitled to up to 12 weeks of FMLA leave per year and are guaranteed their jobs back (or equivalent ones) if they return at the end of that leave. That means you can terminate at the end of 12 weeks, right?

Maybe not. Although discharging the employee doesn’t violate the FMLA interference clause—which prohibits employers from interfering with the right to take FMLA leave—it may violate the retaliation clause if the employer fires the employee because she took FMLA leave.

Recent case: Maureen Thurston had surgery on her foot and asked for 12 weeks of FMLA leave, for which she was eligible. She explained that she might need additional time off if the surgery did not go well.

Her employer explained her reinstatement rights and asked her to keep the company informed about her condition and return date. When Thurston didn’t return after her 12 weeks, the employer fired her for “having abandoned her position” and for failing to keep it informed about her condition. But Thurston had phone records showing she had called the HR department regularly.

She sued for interference with her FMLA rights and retaliation for having taken FMLA leave.

The court dismissed the interference claim since she got 12 weeks of leave. But it ordered a trial on retaliation. Now a jury will decide whether Thurston was fired for taking FMLA leave and whether the employer’s reason for firing her was bogus. (Thurston v. Cherry Hill Triplex, No. 06-3862, DC NJ, 2008)

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