Public employers aren’t required to abide by all sections of the
But recently the 5th Circuit Court of Appeals has ruled that immunity does not extend to a claim for reinstatement after an employee takes —even if the employee took time off for his own serious health condition and even if he can’t collect damages.
The rationale is that refusing to reinstate an employee after taking FMLA leave amounts to a continuing violation of federal law.
Recent case: Robert Nelson was working for the University of Texas at Dallas when he was severely injured in an auto accident and his son committed suicide. Nelson asked for FMLA leave to deal with the accident and the aftermath of his family tragedy. The university approved his FMLA leave. Then it inexplicably terminated him before he had used up his 12-week FMLA entitlement.
Nelson sued for reinstatement, and the university said it was immune. It claimed that the federal government had no right to order it to reinstate.
The 5th Circuit Court of Appeals disagreed. It looked at other federal circuits and concluded that the U.S. Supreme Court has allowed the federal government to force state governments to follow federal laws if the state is engaged in a continuing violation of federal law. It reasoned that refusing to reinstate an employee who took FMLA leave amounted to such a continuing violation. (Nelson v. University of Texas, et al., No. 07-10660, 5th Cir., 2008)
Note: For more on , download the free HR Specialist white paper FMLA in a Nutshell: How to Comply with the Family and Medical Leave Act.
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