Pennsylvania employees might have a lower burden of proof in demonstrating that they were fired in retaliation for taking leave under the Family and Medical Leave Act. In a case involving a woman with poor job reviews, the employer had extensively documented issues with her performance. These issues were put into writing, and the woman was given extra training in an effort to deal with them. When the extra training did not help, she was placed on a 90-day probation.
The woman suffered from anemia and other conditions, and she asked for and was granted FMLA leave while she was on probation. The woman returned after 12 days, and a week later, the company fired her. In her lawsuit, the woman said she was fired for taking FMLA leave. The employer used the reviews, the extra training and the probation period to support its argument that she was fired for performance-related reasons.
A district court ruled that the employee had to prove that she would not have been fired if she had not taken FMLA leave. A jury found that she did not succeed. However, an appeals court said she only had to prove that the FMLA leave was a factor. The case will go back to trial using the lower standard.
People are supposed to be able to take FMLA leave for their own medical issues or to care for immediate family members. An employer is not permitted to retaliate against an employee for taking FMLA leave. It is common for an employer to claim that a person was fired for performance reasons instead of as retaliation, so it is important for employees to keep records of any positive performance reviews or other evidence, such as emails, that indicate that the employer was happy with their work.