Criticism after FMLA? Beware retaliation

When a good employee with no disciplinary record suddenly turns into a bad employee following FMLA leave, watch out. You may have on your hands a bitter supervisor who wants to punish the employee for disrupting workflow, creating scheduling hassles and otherwise making life more difficult.

Before approving discipline or a poor evaluation, look deeper. Check to make sure others with similar performance problems who didn’t take leave weren’t treated more favorably.

Recent case: Marie worked in a retirement community as a certified nursing assistant and got good reviews. She had never been written up for any disciplinary problems or received a poor evaluation.

Then Marie hurt her shoulder while lifting a resident. She filed a workers’ compensation claim and was temporarily placed on light duty, since she could not lift more than 10 pounds until fully healed. She took intermittent FMLA leave from that light-duty position to attend physical therapy and other medical appointments.

After getting the all-clear to return to work, Marie soon found herself under investigation for allegedly treating a resident poorly. That resident apparently got angry when Marie allegedly told her not to “get smart with me.” The retirement home then fired Marie.

FMLA Compliance D

She sued, alleging that she had been terminated in retaliation for taking FMLA leave and filing a workers’ compensation claim.

She noted her spotless pre-injury employment record, that another employee caught yelling and using “disrespectful language” with residents wasn’t punished and that the employer had a progressive discipline program but didn’t use it in Marie’s case.

That was enough for the judge to order a trial. (Villard v. White­­marsh Continuing Care Retire­­ment Community, No. 10-7230, ED PA, 2012)