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Even in Face of Management-Friendly Ruling, Employers Need to Be Careful of FMLA Retaliation


The 11th U.S. Circuit Court of Appeals issued a ruling this past winter that seems to make it more difficult for employees to bring claims against their employers accusing them of retaliating after they request time off under the Family and Medical Leave Act.

Despite the decision, however, employers still need to be very careful to avoid even a whiff of retaliation when a worker requests protected leave in order to deal with a medical issue or care for a sick family member.

In the case in question, Doris Lapham, a veteran Walgreens employee, spent several years working overnight shifts so she could care for her disabled son during the day. Between 2011 and 2016, she also requested and received periodic FMLA leave to care for him.

During that time, she also apparently received below-average performance reviews with supervisors complimenting her customer service skills but criticizing her ability to complete tasks, her excessive break-taking, and her alleged dishonesty and insubordination.

In the spring of 2017, while an intermittent leave request was pending, HR terminated Lapham after further documenting her alleged deficiencies.

In a federal FMLA retaliation suit, Lapham argued that Walgreens should be held liable because her leave request was at least a motivating factor in the decision to fire her given the close timing between her request and termination, as well as the fact that her supervisor discussed the request with HR while they were deliberating an employment action.

But the 11th Circuit ruled that she had to prove the termination was because of the leave request, not just that it contributed to the decision.

While the ruling may have employers breathing a sigh of relief, keep in mind that it only holds force in the 11th Circuit states of Florida, Georgia and Alabama. In other circuits it may remain sufficient for the worker to show that a leave request was a motivating factor.

Additionally, employers that lack a clear process for responding to leave requests in a timely manner and aren’t careful about avoiding discussion of the FMLA in performance evaluations leave themselves vulnerable under any standard.

That’s why now is as good a time as any to meet with an attorney to discuss your policies and procedures.