Simply granting leave doesn’t end your FMLA-related liability

As you know, the FMLA requires employers to grant up to 12 weeks of paid leave to eligible employees. What many employers don’t seem to realize, though, is that the law also prohibits discrimination or retaliation against employees who’ve asserted their rights under the FMLA.

FMLA Violation?

A city employee took a one-month FMLA leave for surgery. Two months after he returned, he was terminated during a reorganization.

He filed a lawsuit claiming FMLA violation. The employer argued his dismissal couldn’t have been FMLA-related because of the two-month delay. It also provided evidence of the employee’s inefficiency.

The employer won the case. But in issuing it’s ruling, the court made an important point: The two-month delay alone, it said, was “not sufficient to rebut a claim of retaliation.” If it hadn’t been for the other evidence, the court would have sided with the employee, and convicted the employer of FMLA violation.

Like Title VII

Remember, even if you allow an employee all the FMLA leave to which he’s entitled, you could still be liable for FMLA violation.

Under the law, it’s considered an FMLA violation to fire, demote, discipline or refuse to hire an individual for requesting or taking FMLA leave.

In fact, for all practical purposes, employers should think of anyone who has requested or taken FMLA leave as a member of a “protected class” of employees under Title VII regulations.

Cite: Potenza v. City of New York, U.S. Court of Appeals, 2nd Circuit, No. 01-9351, 4/23/04.

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