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Employers Must Be Wary When Terminating Employees on FMLA Leave

above-the-bar-logo-no12.jpgThe Family and Medical Leave Act (“Act”) makes it illegal for an employer to deny an eligible employee his or her right to take leave. The Act also prohibits employers from retaliating against an employee who takes time off under the Act. In a recent case, Shaffer v. American Medical Association, the federal court sent the case back to have a jury decide if an employer terminated the employee’s position because he was going to take a four to six week leave of absence for a knee replacement surgery under the FMLA. Our attorneys have helped many companies train their personnel to avoid such claims.

William Shaffer worked at the American Medical Association (“AMA”) as Director of Leadership Communications. Back in 2008, various positions were going to be eliminated because of budget cuts and the economy. Michael Lynch, the head of the communications department and Shaffer’s boss, had already picked a position to terminate which was in Shaffer’s department because that employee’s duties had changed. On October 28th, Lynch had stated that he didn’t think Shaffer’s position needed to be cut.

However, upon learning of Shaffer’s FMLA’ request, Lynch changed his mind. Shaffer put in his request under the Act to take off four to six weeks for knee replacement surgery on November 20th. On November 30th, Lynch decided to terminate Shaffer’s position and specifically in an e-mail to his boss, said that he apologized for his “11th hour change of heart” and stated that “The team is already preparing for Bill’s short-term leave in January, so his departure should not have any immediate negative impact.”

If you’re an eligible employee, the Act protects you from losing your job and health insurance benefits for up to 12 weeks. The Act applies to all public agencies, state, local and federal employers, and private sector employers who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Under the Act, an employee may take up to 12 weeks of unpaid leave for any of the following reasons:

  • to give birth and care for a newborn
  • to care for an immediate family member, such as a spouse, child, or parent with a serious health condition
  • medical leave when the employee cannot work due to a serious health condition
  • for adoption or foster care placement with the employee

In order to be eligible to take leave, an employee must meet the following conditions:

  • work for a covered employer;
  • have worked for the employer for a total of 12 months;
  • have worked for at least 1,250 hours over the past 12 months; and
  • work at a location or within 75 miles of a location where the employer has at least employed 50 employees.

If you are an eligible employer under the Act, make sure your supervisors and managers are trained and familiar with the Act’s policies. A simple, unintended slip of the pen can cost your company thousands in litigation. Even if Shaffer’s termination was not related to his leave request, the e-mail’s specific reference to the leave casted a negative shadow on whether his firing was due to his FMLA request. If you decide to fire or eliminate an employee’s position days after he or she gives notice of leave for any of the reasons set forth in the Act, make sure that you document your reasoning and thought process.

Our attorneys can help you protect your business from unnecessary claims and litigation. Call our experienced FMLA Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you train you supervisory staff and deal with FLMA claims.

Fact Sheet #28, Department of Labor

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