Warn supervisors: No griping about impact of employee taking FMLA leave

Time off taken to deal with an FMLA-protected serious health condition is protected. Employers can’t retaliate against workers who take leave.

That means supervisors need to avoid expressing frustration about a worker’s illness and its effect on operations or insurance cost. Any such criticism may be used against you should the employee have to be disciplined or discharged. She may claim she was punished in retaliation for taking FMLA leave.

Recent case: Debby worked in a culinary school’s financial aid department. For years, she left early on Fridays for religious observance.

She injured herself at work and had to have a series of operations and extensive physical therapy. However, as management acknowledged, she always made up the time earlier in the week or by working from home.

Then supervisors began complaining about Debby’s lack of “face time” in the office. Another manager sent an email asking whether her medical needs were impacting the school’s medical insurance costs.

FMLA Compliance D

Debby took more medical leave and eventually returned. But for two weeks, she didn’t check the voicemails students and others had left on her system. This led to her termination.

Debby sued, alleging among other claims that she had been fired for taking FMLA leave. As evidence, she cited the comments about face time and insurance costs.

The court said that was enough to send the case to trial on FMLA retaliation. (Yeager v. ICE, No. 14-CV-8202, SD NY, 2017)