Some Pennsylvania employees may believe they have been retaliated against at work for taking leave under the Family and Medical Leave Act. One factor a court will take into account when determining if FMLA retaliation has taken place is the proximity in terms of time of the employer’s action to the FMLA leave. This was the case when the U.S. Court of Appeals for the 11th Circuit overturned the dismissal of a lower court in a FMLA retaliation case.
The employee in this case had taken FMLA leave for surgery. Near the end of the leave, a doctor decided he should not return to work yet. The employer required a fitness-for-duty certificate after the man requested light duty, but he did not supply the certificate.
The man was granted 30 days of non-FMLA leave and took vacations during that time that he posted photos from on Facebook. He was terminated when he returned to work because of the photos.
The 11th Circuit agreed with the lower court that there had been no FMLA interference but disagreed that there had not been retaliation. The district court had dated the termination from when FMLA leave began, but the appeals court said the last date of FMLA leave should be used. The lower court will try the case.
FMLA regulations are often poorly understood by both employers and employees. Employees may want to talk to an attorney about their FMLA rights and how the regulations should be interpreted. As this case demonstrates, if an employer gives the impression of having retaliated against an employee through proximity in time and a poorly-presented rationale for termination or other actions, this may be enough for a trial. An employee may want to carefully document an employer’s actions as evidence.