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Employees can sue for retaliation under FMLA guidelines after return from FMLA leave

by on January 26, 2009 · 1 Comment POSTED IN: HR Info Center

FMLA rules allow for employees to file retaliation lawsuits

It seems as though the courts are always figuring out new nuances of FMLA guidelines, and we’ll keep bringing them to you as you work to keep abreast of this complex law.

The latest wrinkle comes from Maine. A worker was fired after the company put surveillance on him during a period of FMLA leave. He said the leave was for disabling migraine headaches. The surveillance revealed that the worker had gone to the gym and the video store on days he was supposed to be sick.

He sued under FMLA guidelines, claiming the company interfered with his right to take leave. He also filed a retaliation lawsuit.

The court threw out the interference claim. Among other things, the employee admitted his migraines were so bad he wouldn’t have been able to return to work until well after his leave expired. Employers don’t have to reinstate employees after FMLA medical leave if they can’t do essential job functions.

Wrongful termination
With the retaliation lawsuit, the court came to a less obvious conclusion: The employee’s inability to return to work didn’t kill his retaliation claim.

The court said employees who couldn’t work after FMLA leave might still be able to prove the employer deprived them of salary or benefits in between the date of their wrongful termination and the date their leave expired. Or they might be eligible under FMLA rules for reinstatement once they were able to work again.

Cite: Colburn v. Parker Hannifin, No. 05-1308, 1st Cir., 11/18/05

  • susinn

    I may not be able to resume my job, due to knee surgery, and have been denied the right to take classes, sitting at a desk, while on FMLA. I am trying to inprove my employability with this company..What are the rules here?? thank you.

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