Medical Leave Issues
The Family and Medical Leave Act
In 1993, Congress passed the Family and Medical Leave Act (FMLA) to balance the demands of the workplace with the needs of families, promote the stability and economic security of families, and preserve our national interest in family integrity. To that end, the FMLA gives employees who suffer from, or care for a family member who suffers from, a serious medical condition the right to take up to twelve weeks of unpaid leave from work during a twelve-month period and, upon returning to work from FMLA leave, have their pay and benefits restored.
The FMLA prohibits employers from interfering with, restraining, or denying an employee’s exercise of, or attempt to exercise, any right provided to them under the FMLA. An employee who has suffered harm as a result of such actions may bring an FMLA interference claim against their employer if certain requirements are met.
The FMLA also prohibits employers from retaliating or discriminating against an employee for exercising, or trying to exercise, their rights under the FMLA. If an employer violates this prohibition, the victim may bring a claim for FMLA retaliation or discrimination against the employer.
FMLA Interference Claims
To establish a presumption of FMLA interference, an employee must show that:
- their employer interfered with, denied, or restrained their exercise of FMLA rights;
- they were an “eligible employee”;
- the FMLA covered their employer;
- they were entitled to take FMLA leave; and
- they gave their employer proper notice of their intention to take FMLA leave.
If an employee establishes each of these elements, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for the adverse employment action taken. If defendant-employer does so, the burden shifts back to the employee who must then show that their employer’s reason is “pretextual.” Unlike a retaliation claim, an FMLA interference claim does not require proof of discriminatory intent, the employee need only prove an act of interference.
An employee who establishes an FMLA interference claim against their employer may recover damages for the monetary losses directly caused by the interference as well as “equitable relief.”
The general statute of limitations for bringing FMLA claims is two years from the date of the employer’s alleged violation, or three years if the employer “willfully” violated the FMLA.
Interfering with an employee’s FMLA rights may include an employer’s:
- denial of an employee’s request for FMLA leave;
- actions discouraging employees from requesting FMLA leave;
- failure to restore an employee returning from FMLA leave to their former level of pay;
- failure to restore an employee returning from FMLA leave to their former level of benefits;
- failure to restore an employee returning from FMLA leave to their former working conditions, privileges, prerequisites, and status;
- failure to place an employee returning from FMLA leave in the same or substantially similar position within the organization in terms of their job duties, level of responsibility, level of effort required, skill level, and authority;
- failure to assign an employee returning from FMLA leave to a worksite that is in the same geographic area (i.e., one that does not involve a significant increase in commuting time or distance) from where the employee had previously been employed; and
- failure to provide an employee returning from FMLA leave with the same shifts or an equivalent work schedule as before their leave of absence.
To be eligible for FMLA leave, an employee must have:
- been employed for at least twelve months, and
- worked at least 1,250 hours of service during the twelve-month period immediately before the first day of their FMLA leave.
The FMLA generally applies to the following employers:
- private companies that employ fifty or more people;
- governmental agencies, regardless of size;
- public and private elementary schools and secondary schools, regardless of size;
In certain situations, multiple legal entities that collectively operate as a single business enterprise may also be treated as a single employer for purposes of determining whether they meet the 50-employee minimum requirement for FMLA coverage.
Entitlement to Take FMLA Leave
To be entitled to take FMLA leave, an employee must meet certain qualifications. Specifically, to qualify for FMLA leave, an employee must suffer from a “serious health condition” and be unable to perform the functions of their position. Alternatively, an employee is entitled to FMLA leave in order to care for a family member with “a serious health condition.” The FMLA defines “serious health condition” as either:
- an illness, injury, impairment, physical condition, or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility; or
- continuing treatment by a health care provider.
To be entitled to FMLA leave, an employee must provide their employer with adequate notice of their intent to take FMLA leave when their need for such leave is foreseeable. In most situations, an employee must follow their employer’s customary procedures for requesting FMLA leave. Absent unusual circumstances, an employer can delay or deny FMLA-protected leave based an employee’s failure to comply with procedures.
If an employee submits an incomplete or inadequate certification of their medical condition, the employer must afford them an opportunity to cure the deficiencies.
FMLA Retaliation and Discrimination Claims
The FMLA makes it unlawful for an employer to fire, retaliate, or discriminate in any manner against an individual for exercising FMLA rights, attempting to exercise FMLA rights, or opposing their employer’s unlawful FMLA practices. To prevail on an FMLA retaliation or discrimination claim, an employee must first demonstrate a “prima facie case” with evidence that they:
- engaged in a “protected activity” by requesting or taking FMLA leave, or by otherwise exercising or attempting to exercise a right under the FMLA;
- their employer took an adverse employment action against them; and
- a “causal link” between the employee’s protected activity their employer’s adverse action.
Once the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory/discriminatory reason for the adverse employment action. Thereafter, the burden shifts back to the employee to show by a “preponderance of the evidence” that the reasoning presented by the employer is a pretext for retaliation/discrimination. Unlike an interference claim, an FMLA retaliation/discrimination claim requires that an employee prove that their employer acted with discriminatory intent.
Adverse Employment Action
In order to establish an FMLA retaliation or discrimination claim, an employee will have to show that their employer took some type of adverse action against them after they engaged in a protected activity. The following are examples of “adverse actions” that may serve as the basis for an employee’s retaliation or discrimination claim against their employer:
- reduction in pay;
- loss or reduction of benefits;
- divesting of significant responsibilities;
- failure to promote;
- discontinuation of stipends;
- denial of a pay increase;
- reassignment to menial or degrading work;
- negative references to potential employers; or
- severe or pervasive insults, ridicule, threats, intimidation, or humiliation intended to encourage an employee to resign.
This is not a comprehensive list of the types of conduct that may qualify as an “adverse action.” There are many other ways in which an employer can retaliate or discriminate against an employee.
Finally, to prove an employee’s FMLA retaliation or discrimination claim, they must create a “chain of causation” that links their taking of, or request for, FMLA leave to their employer’s adverse action. To do this, an employee must show that their employer’s adverse action was based, at least in part, on their taking of, or request for, FMLA leave. An employee cannot establish a retaliation claim if their taking of, or request for, FMLA leave and their employer’s adverse action are unrelated.
In determining whether such a connection exists, courts may consider a variety of factors. The following are examples of the types of evidence that an employee may use to link their decision to take or request FMLA leave to their employer’s adverse action against them:
- Direct Evidence of Employer’s Retaliatory Intent: Examples of direct evidence of an employer’s retaliatory intent include employer threats, hostile behavior, or negative remarks about an employee’s decision to take or request FMLA leave. An employer’s efforts to discourage employees from requesting or taking FMLA leave may also serve as evidence of the employer’s intent to retaliate against someone for requesting or taking such leave.
- Closeness in Time: A major factor in determining whether an employer’s adverse action was motivated, at least in part, by an employee’s request for, or taking of, FMLA leave is the amount of time that separates the two events. For example, the fact that an employer fired an employee just one day after they requested FMLA leave strongly suggests that the employer’s decision to fire the employee was motivated by their request for FMLA leave. On the other hand, a five-year time gap between an employee’s request for FMLA leave and the employer’s decision to fire them suggests that the employer’s termination decision had nothing to do with the FMLA leave.
- Other Facts That May Create a Chain of Causation: There are a number of other facts that may support a causal link between an employee’s request for FMLA leave and their employer’s adverse action, including the fact that the manager/supervisor who decided to take adverse action against them held that same position at the time they requested or took FMLA leave; or the fact that their manager or supervisor began treating them unfavorably after they requested or took FMLA leave. There are numerous other factual scenarios that an employee may use to prove that their employer’s adverse decision against them was based in whole or in part on their request for, or taking of, FMLA leave.
Paid Sick Leave in Texas
The State of Texas does not have any state-wide laws requiring employers to provide employees with paid sick-leave days. The cities of Austin and Dallas recently passed laws under which certain employees are entitled to take a certain number of paid sick-leave days. It is unclear whether these municipal laws and others like them will withstand legal challenges in Texas courts.
Some employers voluntarily offer paid sick-leave days to employees. If your employer generally provides employees with paid sick-leave days, but refused to grant your request for paid sick leave, you may have a contractual claim against your employer.
Working with an Employment Lawyer on Your Medical Leave Issues
If you believe you may have a legal claim related to a medical leave of absence from your job, it’s imperative that you take action immediately. Keep detailed notes and records of the actions taken by you and your employer, the individuals involved, dates, times, etc. Keeping detailed notes, copies of emails, and records of the events that transpire at work can prove to be very helpful down the road during an investigation of your claim.
If you have questions about medical leave issues, contact the Wagoner Law Firm today for a free initial case evaluation.