FMLA retaliation — what employers need to know

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What is FMLA retaliation? It’s either when an employer or manager punishes an employee for taking time off of work or tries to interfere with an employee’s FMLA rights. We cover everything you need to know about FMLA retaliation for employers and employees.

In this article, we cover:

  • What FMLA retaliation is and how to avoid it.
  • How to avoid lawsuits and punitive damages due to FMLA retaliation.
  • Examples of FMLA retaliation.
  • Basic FMLA eligibility facts.
  • How to correctly handle employees who take FMLA leave.

What is the Family And Medical Leave Act?

The Family And Medical Leave Act is an employment law ensuring rights for employees who need to take medical leave or for other reasons like:

  • The birth of a child.
  • Adoption of a child.
  • Caring for a service member.
  • Serious medical condition/serious health condition.
  • Sick leave/medical needs.

Basically, FMLA allows employees to take 12 weeks of unpaid leave each year to deal with a qualifying exigency. An example of qualifying exigency would be a mother giving birth or an employee taking time off to care for a sick family member.

These 12 weeks of leave can be taken continuously and it can also run concurrently with paid leave if approved by the employer. Another big plus is that employees can request intermittent leave from employers that allows them to take their time off in different intervals(e.g., an employee who has frequent migraines).

FMLA Compliance D

How does FMLA protect employees?

When certified and protected under FMLA, employees are guaranteed their jobs back. Specifically, employees are entitled to these benefits upon reinstatement when taking unpaid leave from their job:

  • Their same job, or an equivalent position, after the end of the unpaid leave.
  • The same benefits (insurance, health care, etc) after their unpaid leave.
  • A similar work schedule.
  • The same hourly wage or salary.

Who is protected by FMLA?

FMLA leave applies to anyone with a government job or anyone who works for a company with over 50 employees (or full-time equivalents) who all work within a 75-mile radius. Employees are eligible for FMLA leave if they work for a covered employer and:

  • Has worked for the employer for at least 12 months. Breaks in service are allowed as long as they are for less than seven years.
  • Worked at least 1,250 hours for the employer within the last 12 months. Thus, some part-time workers are covered if their hours total 1,250 for the year.
  • Works at a location where the employer has at least 50 employees within 75 miles.

Taking state law into consideration

Some states like California have different rules when it comes to FMLA.

For example, pregnant mothers in California have the right to 12 weeks of unpaid leave if their company has more than 5 employees (FMLA requires 50 employees).

Can the employer deny the requested leave?

Yes, the employer can deny requested leave if the employee is a key employee to the company, and that’s the catch in the whole system.

Basically, denied leave is an employment decision that happens if the employer can prove that the company would suffer from substantial loss during the employee’s leave, they are entitled to deny the employee’s leave request.

However, leave can also be denied if the request is not submitted at least 30 days before leave is needed, or if a request does not seem to meet the qualifications for a serious medical condition.

How do employees take advantage of FMLA leave?

Let’s clarify, it isn’t always the employer who is in the wrong when it comes to FMLA retaliation.

In fact, it’s quite common that employees are taking FMLA to leave to take advantage of their employer.

Here are a few ways that employees might take advantage of FMLA:

  • Taking leave without actually needing it.
  • Taking leave to go on vacation.
  • Using leaves as an excuse for poor performance.

In these cases, employers can have legitimate actions available to them if FMLA abuse is expected.

Private investigation

Employers in the past have launched private investigations to find out whether or not an employee is abusing their leave time. This is a viable option as long as you have a legitimate reason to suspect abuse.

Employers must designate leave as FMLA beforehand

The most important part for employers to remember is that they must designate in their leave policy whether or not paid or unpaid leave is counted as FMLA leave time. Any time an employee takes leave from their position, HR and management should be on top of designating their leave as FMLA, if it is indeed FMLA.

For example, an expecting mother could leave her job for 12 weeks without her employer officially completing FMLA certification. Then, she could file for FMLA leave after that initial 12 weeks is up to gain an extra 12 weeks of unpaid leave. Legally, the employer would be entitled to do so, as she would not have expended any protected FMLA leave.

This is why it is absolutely crucial to properly train HR and front-line management employees to be on top of their game when it comes to FMLA leave.

FMLA poster

Federal law requires that all covered workplaces display an FMLA poster in the workplace to educate employees of their rights.

That means any government facility or company with over 50 employees must display the FMLA poster.

FMLA retaliation and lawsuits

Lawsuits can result from FMLA retaliation claims

Failure to properly handle your employees’ FMLA leave could result in an expensive lawsuit. Why? Because eligible employees have the right to complain to the U.S. Department Of Labor Wage and Hour division if they feel their FMLA rights are being taken advantage of.

Any employment decision that negatively affects an employee (to the point of a lawsuit) is called adverse employment action.

An FMLA interference claim is when an employee makes a formal complaint with the U.S. Department Of Labor Hour And Wage Division and files a legal suit to repair damages.


Employers: The most important part when terminating an employee is to keep FMLA out of the reasons for termination. You may not terminate an employee for ‘requested medical leave’ if it is protected by FMLA (or the American’s with Disabilities Act). If you attempt to terminate an employee while on, or before/after them taking, FMLA leave, you must be cautious to be clear about the reasons.

Employers should always attempt to file written warnings for poor behavior before the employee decides to take their medical leave — this way the employer can make a case that they weren’t retaliating for the employee’s need for leave but rather poor performance or no-call no-shows.

You must prove, and document, that an employee would have been terminated regardless of whether they were on FMLA leave or not.

Avoid making a million-dollar mistake

Taking vacation/traveling while on medical leave? It turns out that in some cases vacation is a completely acceptable and protected activity.

In fact, there is one case where an employee gains over a million dollars in a settlement after being fired because he went to Mexico while on unpaid medical leave.

Basically what happened, in this case, is the employee had surgery on his leg, and wanted to return to work early but didn’t have the doctor’s approval.

The employee was put in a pickle because he couldn’t return to work even though he hadn’t waited a sufficient amount of time after surgery. Subsequently, the employee took a vacation to Mexico to pass the time for two more weeks before the doctor would permit him to return to work.

When the HR department found out about the employee’s vacation through social media, they decided to terminate the employee for misuse of FMLA leave time, and that was the mistake — the employee had the right to take the vacation while recovering from his surgery.

Needless to say, employers should be extremely careful about how they handle employees on FMLA leave.

Properly train employees on FMLA

Most problems are avoided by properly training employees about leave requests and their FMLA rights.

For well-trained employees, there must be well-trained human resources and upper management to properly handle and prevent lawsuits and employees from taking advantage of their leave time.

What is a summary judgment?

This is where a court case is decided by the judge without going to trial. Summary judgment usually happens because both the plaintiff and the defendant have provided sufficient evidence for the case to come to a decision. A summary judgment typically happens to avoid a long and expensive trial for both sides of the case.

Some FMLA cases go to summary judgment sooner than later because both sides of the case have submitted a sufficient amount of evidence for the judge to come to a decision.

Dealing with FMLA problems in the workplace

Retaliation from an employee’s absence doesn’t always come from the employer or manager. Sometimes it comes from coworkers who are left to deal with tough problems at work. While an employer’s manager may not be the one creating these issues, allowing another manager to make inappropriate remarks, or allowing harassment from a colleague to take place could be seen as the employer partaking in or endorsing FMLA retaliation.

Toxic/dangerous/taxing work environment

A toxic work environment could very well be the cause of some sort of drama that ends up in a lawsuit with FMLA rights backing the claims.

For example, maybe an employee is working in dangerous conditions, and he/she notices that she could take some unpaid leave to treat injuries/wear and tear on her/his body.

Maybe there is an employee who has to deal with all of the paperwork at the office. After a while, constant migraine causes them to request medical leave.

That’s an example of a situation where a conflict might happen because maybe the proper work isn’t being done once a potentially key employee wants to leave work intermittently.

A few types of conflict that can happen in the workplace as a result of an employee taking FMLA leave

An employee takes intermittent leave at inconvenient times

This is a classic FMLA problem. When the work gets hard, an intermittent leave employee could suddenly be hit with a migraine that ‘forces’ them to leave work.

That’s when other employees get mad. And who can blame them for being stuck with the dirty work?

Avoiding disputes between employees can be easily avoided if there is discretion between HR and the employee taking the leave. The fact that an employee needs to leave work isn’t any of their co-workers’ business. However, coworkers are still likely to notice if another employee suddenly leaves, but you should not provide any details other than that they have been permitted by the company to do so.

Even so, you cannot control the actions of all of your employees, and it’s not impossible that an employee may make inappropriate comments to someone using intermittent leave at an inconvenient time. Be certain not to condone such actions and not address any such retaliation among coworkers.

An employee schedules surgery when a project is due

Similarly, an employee could schedule surgery during a busy time or when a large project is due. First, as always, ensure that you or another employee doesn’t retaliate against that employee for doing so. However, you also may be able to work with an employee to request that they attempt to coordinate and do so at a time that is less inconvenient for the employer. Generally, this is considered ok, especially for elective surgery, but be careful not to push too hard on it, and when in doubt, it’s best to play cautiously.

HR/Management: Avoid a messaging disaster

One of the largest cases ever won by an employee against their employer is in part because of a simple messaging mistake by HR. That’s why it’s vital to communicate clearly and cautiously. Keep messages concise and have any tricky topics reviewed by your legal team if that’s an option.

Management and HR must play all messages, social media interaction, and all other recorded behaviors on the defensive. Watch out for managers that may make comments about FMLA leave being “inconvenient” as this could be considered retaliation.

Finally, while this probably doesn’t need to be said, it’s important to reiterate — HR and management should never retaliate against an employee taking FMLA leave. If you suspect abuse, do your research to investigate and make it clear that any punishment is for abusing FMLA leave. If you wish to terminate an employee who is either using FMLA as an excuse or is simply underperforming but is in the process of taking unpaid FMLA leave, then clearly document the reasons.

Employee receives demotion

Part of an employee’s protection under FMLA is that they are entitled to their same/similar position at work. Therefore, demoting an employee could be a form of retaliation that could cause a lawsuit. It’s important that if an employee is not returning to their exact position, that the position they’re given is not seen as a clear demotion. If it’s questionable, it’s best to consult legal advice now, and not after a lawsuit has been filed.

Things for employees to consider

See the Employee’s Guide to the Family and Medical Leave Act to learn more.

Where to send FMLA retaliation claims

The U.S. Department Of Labor wage and hour division handles all complaints associated with FMLA retaliation.

Call toll-free at 1-866-487-9243 to be directed to the office closes to you. You’ll need to provide the wage and hour division with the following:

  • Circumstances regarding the complaint
  • Manager/owner’s name
  • Company phone number
  • Company location
  • Your name, phone number, and address

Recap: How to avoid FMLA retaliation lawsuits

So, we’ve learned that FMLA leave can turn into a huge liability if not handled correctly. As we’ve looked into previous FMLA suits, we can deduce that problems can be avoided by:

Proper training of HR/management/employees

Help everyone in the workplace understand their rights to FMLA leave, and properly train upper management and human resources on handling the situation when it comes to employees taking unpaid leave.

Using discretion in the workplace

Management and HR should not speak publicly about anything FMLA-related and should manage FMLA leave communication catiously. Any potential case of termination should be discussed and researched beforehand to avoid any lawsuits.

Designating leave as FMLA before the employee takes leave

It’s absolutely crucial to have a leave policy in place that designates all unpaid leave as running concurrently with FMLA leave. Remember, one of the biggest supreme court lawsuits happened because the employer didn’t use a disclaimer to designate the employee’s such leave as FMLA leave before the fact.

Additional resource: Read more about FMLA requirements and what they mean for your business.