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Most employers are familiar with their obligations under the Family and Medical Leave Act (FMLA) and allow 12 weeks of such leave per year.  Even where employers follow these rules, they can still run afoul of the retaliation aspects of the FMLA.  A couple of recent cases illustrate this danger.

In the first case, the plaintiff was disciplined within one month of asking for FMLA and roughly a week after returning from an FMLA leave of about 13 days.  The employer, Marriott, contended it disciplined the plaintiff for insubordination, not for taking FMLA leave.  The hotel said the plaintiff failed to comply with a manager's instructions to place vanilla cakes in a display case, and the plaintiff said she complied with that order despite believing the cakes should not have been put out because they were frozen.  A federal judge denied the defendant's motion for summary judgment, finding that it was not a reasonable job assignment if a jury credit's plaintiff's testimony over her manager's.  The judge indicated that the close timing between the request for leave, the taking of leave, and the discipline, would allow a jury to connect the plaintiff's protected activity with the defendant's discipline.  Tsige v. Marriott Hotel Services, Inc., 2019 BL249750 (D.Md. 7/5/19).

In another case involving the FMLA, the court ruled that an employer improperly fired the plaintiff after he went on vacation to Mexico during the final two weeks of a medical leave to recover from foot surgery.  The employer apparently confronted the plaintiff with photographic evidence of activities he participated in while out on medical leave, and the employer contended that such activities were inconsistent with someone who claimed to have limited mobility.  He was fired for misrepresenting the extent of his injury when he applied for the medical leave.

The case went to a jury trial, which awarded the plaintiff $1.3 million, which included some $715,000.00 in punitive damages.  It has been suggested that this case illustrates that an employee is not necessarily abusing medical leave even when they go on vacation during the protected time off work.  DaPrato v. Mass. Water Resources Authority, Mass. No. SJC-12651, 6/5/19.

Editor's Note: The above cases should send a warning to employers who are considering disciplining an employee around the time they are taking FMLA leave.  While the above dangers are always present, they represent very pro-plaintiff views that are in contrast to the more reasonable views of perhaps a majority of the courts.  For example, many cases recognize a defense when an employer has conducted a full and complete investigation, and formed an honest belief that the employee was abusing FMLA leave or committed some other disciplinary offense.

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