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FMLA leave and evidence acquired after the fact

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in FMLA Guidelines,Human Resources

Document your reason for firing an employee who is out on FMLA leave.

Recent case: Jaime worked on a toilet production line at American Standard. The company’s no-fault attendance program requires discharge after eight unauthorized absences. When he took FMLA leave for back pain, the time off didn’t count against him. But then Jaime left work early after hurting his back again. That took his absences up to eight days, and he was fired.

He sued, alleging FMLA violations. He won, but the judge limited the damages when American Standard showed that Jaime was later jailed and would have been fired because of those absences.

He appealed. The court agreed the employer could use after-acquired evidence to cut liability—but not in this case because American Standard didn’t prove Jaime had been jailed for a full eight days. (Smith v. American Standard, No. 15-1183, 8th Cir., 2016)

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