Retaliation for Medical Leave

Retaliation against employees for taking medical leave is illegal in many jurisdictions, including the United States. The Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) provide employees with legal protections to ensure they can take medical leave without fear of reprisal. Here is an overview of both laws:

The Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) provides legal protection for eligible employees who must take leave for qualified medical and family reasons. Here are some examples:

• Job protection: The FMLA ensures that eligible employees who take leave for qualifying reasons are entitled to return to the same or an equivalent position upon their return to work. This protection helps prevent employers from terminating or demoting employees simply for taking FMLA-protected leave.
• Maintenance of benefits: During the FMLA leave period, employers are generally required to maintain an employee’s health insurance and other benefits. This includes any group health plan coverage the employee had before taking FMLA leave. The continuation of benefits helps provide stability for employees during their medical leave.
• Prohibition of interference: The FMLA prohibits employers from interfering with, limiting, or disallowing an employee’s FMLA rights with threats, intimidation, or any other forms of coercion.
• Anti-retaliation provisions: Employers are explicitly prohibited from retaliating against employees for exercising their rights under the FMLA, meaning that an employer cannot take adverse actions, such as termination, demotion, or other forms of retaliation, against an employee solely because they took FMLA leave.
• Recordkeeping requirements: Employers covered by the FMLA are required to maintain certain records related to their employees’ leave, including documentation of leave requests and other relevant information. This helps in ensuring transparency and accountability in case of disputes.
• Employee notice and certification: While employees are generally required to provide notice and certification for FMLA leave, employers must follow specific procedures and timelines. The law includes provisions to ensure that employees are informed of their rights and responsibilities during the FMLA leave process.

To be covered by the FMLA, an employee must have worked for the employer for at least 12 months and have worked at least 1,250 hours in the year prior to the date of their leave. The employer must have at least 50 employees either at one facility or a total of 50 employees located anywhere within a 75-mile radius. The employee must have a serious health condition to be eligible for FMLA leave. Employees who believe they have experienced retaliation for taking FMLA leave can file a complaint with the U.S. Department of Labor (DOL) or may pursue legal action.

Americans with Disabilities Act (ADA)

Although the Americans with Disabilities Act (ADA) primarily focuses on prohibiting discrimination against individuals with disabilities, it also prevents retaliation for medical leave in certain situations.

Under the ADA, employers are required to provide reasonable accommodations to qualified employees with disabilities to enable them to perform essential job functions, and the law recognizes that granting medical leave can be a reasonable accommodation. If an employee’s disability requires time off from work, the employer may be obligated to provide unpaid leave or modify the leave policies to accommodate the employee’s needs.

The ADA also includes anti-retaliation provisions to protect employees from adverse actions taken by employers in response to the employee asserting their rights under the ADA. This includes the right to request reasonable accommodations or take medical leave as a form of accommodation. The ADA encourages an interactive process between employers and employees to determine appropriate accommodations. Employers are expected to engage in a good-faith dialogue with employees to identify effective and reasonable accommodations, which may include medical leave.

Employers covered by the ADA are required to maintain certain records related to requests for reasonable accommodation. This documentation can be crucial in demonstrating compliance and preventing potential retaliation claims.

The ADA applies to employers with 15 or more employees during 20 or more calendar weeks in the current or preceeding calendar year, and eligible employees must meet the definition of having a disability under the ADA. If employees believe they have experienced retaliation for taking medical leave or requesting accommodations under the ADA, they may file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) or pursue legal action.

Ways employers retaliate against those who take medical leave

Despite laws against it, instances of retaliation can still occur, and it’s essential for employees to be aware of their rights and protections. Retaliation can take various forms, and it may not always be overt. Some examples of potential retaliation against employees who take medical leave include:

• Termination or demotion: An employer might unfairly terminate or demote an employee shortly after they return from medical leave.
• Negative performance reviews: Employees may receive unjustifiably negative performance evaluations as a form of retaliation.
• Exclusion or isolation: An employer might isolate an employee or exclude them from important meetings or opportunities, creating a hostile work environment.
• Increased scrutiny: Some employers may subject employees who took medical leave to increased scrutiny, setting unrealistic expectations or closely monitoring their work.
• Unfair discipline: Employees may face unwarranted disciplinary actions as a result of taking medical leave, such as being written up or suspended.
• Changes in job duties: Employers might alter an employee’s job duties in a negative way upon their return from medical leave.

What should I do if my employer retaliates against me for taking medical leave?

It’s important to document any instances of perceived retaliation, such as dates, times, and details of incidents. If an employee believes they are being retaliated against for taking medical leave, they should consider taking the following steps:

• Know your rights: Understand your rights under the relevant employment laws in your jurisdiction, such as FMLA or ADA.
• Document everything: Keep detailed records of your medical leave, including doctor’s notes, communication with your employer, and any incidents of perceived retaliation.
• Speak with HR: If you feel comfortable, discuss your concerns with your Human Resources department and document your concerns. They may be able to address the issue and find a resolution.
• Get legal advice: If the issue persists, consider consulting with an Atlanta employment attorney to discuss your rights and potential legal options.

Did your company retaliate against you for requesting or taking medical leave? If you have any questions about the FMLA or are concerned that your employer is not following the law, call the Atlanta FMLA lawyers at Buckley Bala Wilson Mew LLP or fill out our contact form to schedule a consultation today. Proudly serving all of Georgia.