It’s all fun and games until joking about injuries leads to an FMLA violation
Employees are entitled to up to 12 weeks of FMLA leave for serious health conditions, including on-the-job injuries. Employers aren’t allowed to interfere with the right to take FMLA leave. It is an entitlement, and punishing or otherwise dissuading workers for exercising their FMLA rights may constitute harassment and retaliation.
While adverse actions such as termination are classic examples of retaliation and dissuasion, other acts may also make the cut. For example, a concerted campaign to make fun of or humiliate someone who takes FMLA leave may also violate the law.
Recent case: Anthony took a job as a court officer for the New York State Unified Court System and underwent extensive training before his first assignment.
His job was hazardous, as it involved attending various court proceedings in which participants’ emotions often run high and those charged with crimes do not always cooperate. Anthony’s training included how to operate firearms, a police baton and pepper spray, as well as bomb detection and other law enforcement skills.
His first assignment was to the Bronx Family Court where violent confrontations were a daily occurrence. Officers there frequently sustained injuries in the line of duty. Often, Anthony was the only officer providing security on the floor where he was assigned.
During one shift, he got a distress call from another officer in the building, and rushed down the hallway. He felt sudden pain in his knee, which locked up, causing him to stop running. Over the next months, the pain grew worse and he sought treatment. Finally, Anthony had surgery to repair torn cartilage.
He took FMLA leave, as well as workers’ compensation leave. More surgery followed. He was out of work for two years. After he returned to work, he claims his supervisor told him he was “broken.”
Then Anthony had another work accident, this one involving injury to his arm when he hit a ledge as he tried to subdue an angry litigant who fell on him. A co-worker drove Anthony to the hospital and took a picture of him in a hospital bed. Following treatment, Anthony again went on FMLA leave.
While he was out, someone doctored the hospital picture and posted it in various locations in the courthouse, including public areas. A caption referred to Anthony as “Mr. Glass.” Other postings included a phony injury claim form stamped “rejected.” Anthony also had to endure a variation of his last name used as a nickname; co-workers referred to him as “Fragimino,” a play on “fragile” and his last name, Boncimino.
Anthony returned to work and complained to HR about his treatment, but got nowhere. His supervisors told him to “suck it up” and “toughen up”—and told him to stop calling off sick. He eventually went home and didn’t return, citing stress and anxiety.
Then he sued, alleging interference with his right to take FMLA leave without retaliation. He claimed the posters and name-calling were designed to dissuade a reasonable person from taking FMLA leave.
The court agreed, and said his case could proceed. Actions and words that would discourage a reasonable worker from taking FMLA leave in the first place can be interference and retaliation. (Boncimino v. New York State Unified Court System, et al., SD NY, 2018)