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FMLA Retaliation: Despite Compliance, You May Need to Defend Yourself

It happens. No matter how well you think you’ve trained your staff on FMLA (Family and Medical Leave Act) compliance, or how well you’ve informed employees about their rights, or how closely you think you’ve managed the FMLA process, employees sometimes seek retaliation.

For that simple reason — and despite your company’s best intentions and actions — it’s good to understand:

  1. Why an employee can claim you’ve made an adverse FMLA decision and the damages they can seek
  2. The most common mistakes that lead to a negative employee action
  3. How to reduce the likelihood of a retaliation claim

Retaliation under the FMLA simply means an employee seeks recourse, claiming you’ve adversely affected the terms and conditions of their employment after they exercised their rights under the FMLA. Common examples of “adverse employment decisions” related to the FMLA include:

  • Terminating an employee for requesting FMLA leave
  • Demoting an employee for taking intermittent leave to care for a family member
  • Marking FMLA absences as a negative in performance reviews or project assignments

An employee can seek remedies ranging from reinstatement to monetary punitive damages, such as those awarded in personal injury or libel cases. Other remedies can come in the form of:

  • Back pay: income lost before the case reaches a court decision or is settled
  • Front pay: the employee’s projected future earnings or continued lost income
  • Value of lost benefits: medical expenses and related costs, for example
  • Other monetary losses: needing to hire a caretaker instead of taking leave to care for a family member
  • Interest, court costs, and attorney’s fees

To mitigate the likelihood that an employee will seek recourse after they’ve been granted (or even taken) leave under the FMLA, it’s a good idea to know the most common mistakes employers make that lead to retaliation claims:

  1. A poor notification process (e.g., you don’t request medical certification in writing)
  2. Over-aggressive certification (e.g., a manager asks for more information than the FMLA requires)
  3. Misunderstanding qualifying circumstances (e.g., a manager denies FMLA leave despite an employee’s qualifying serious health condition)
  4. Wrongful termination (e.g., terminating an employee during or after their FMLA leave without a clear and valid reason)
  5. Failure to offer the same or an equivalent job (e.g., shift changes without a good business reason)
  6. Denial of parental leave (e.g., not granting FMLA leave to provide physical or psychological comfort for an employee’s parent)
  7. Poor absentee policy (e.g., not designating FMLA when it should be applied)
  8. Poor communication of FMLA use (e.g., failure to send an employee the required out-of-time notice in a timely manner)

To prevent retaliation claims — and to avoid employee misunderstandings and confusion in general — remember the adage that the best defense is often a good offense. It’s better to go beyond just understanding the law, instead taking steps to actively train managers and communicate to employees.

Start by regularly reviewing your FMLA policies and procedures to ensure they are consistent throughout your organization. Next, train managers and HR staff on how to handle accusations of FMLA abuse or improprieties. Perhaps the strongest move you can make is to automate your entire leave management system. Tracking employee leave in the cloud enables you to access leave data anywhere, anytime, with any device with an internet connection.

To this end, it’s best to look for a leave management system that’s secure and quick to deploy. In an ideal case, you’ll be able to get started with a turnkey solution that works out of the box; however, if you’re looking for a more complex system, your company may need a solution with a base model that can easily be built up or customized.

Finally, you’ll want a leave management system that includes:

  • An intake portal that will allow your employees to have a single, designated location to submit a leave of absence request. The intake portal should then push automatic notifications to your leave managers, creating a streamlined process.
  • Case information and history, to give you the most detailed picture of your employee’s leave of absence. The system should allow for auto-generated letters, attachment upload and storage, email tracking, and a communication history log.
  • Instant references for employee eligibility, so you’re not constantly digging for hire date, hours worked, etc.
  • Automatic updates on federal and state FMLA, military leave, and other regulation changes.
  • A specific area where you can track return-to-work and accommodations actions.
  • The capability to generate reports showing the big picture of your absence state, including a glimpse at areas that need to be adjusted. This reporting will also help you track trends over time so you can make better business decisions and improve your company's absence program.