Employment Breakfast - FMLA Retaliation: Understanding and Managing the Risks

The federal Family Medical Leave Act of 1993 (“FMLA”) has been on the books for 25 years. By now, most covered employers understand their obligations to adopt family medical leave policies that comply with the Department of Labor regulations and to establish procedures to ensure that eligible employees’ requests are appropriately processed in a timely fashion. But granting an employee’s leave request for FMLA leave does not end the employer’s potential legal risk. According to the U.S. Department of Labor, retaliation claims account for the vast majority of all FMLA complaints filed with the agency. Knowing how to manage these legal risks is essential.

Pierce Atwood attorney Dan Strader and now retired partner Meg LePage led a discussion of best practices in avoiding FMLA retaliation claims. Among the questions they explored are:

• What modifications must employers make in their attendance policies to comply with the FMLA?
• What steps can employers take to mitigate retaliation risk when it disciplines employees for FMLA fraud or abuse?
• Does an employee who is ineligible for FMLA have standing to bring an FMLA retaliation claim? How should an employer mitigate that risk?
• Can an employer be held liable under the FMLA if there is some evidence of retaliatory animus, even if the employee who requested leave would have been fired for other legitimate reasons?
• What steps should an employer take to insure that internal communications do not provide fodder for retaliation claims?
• How often should employers make contact with employees while on family medical leave?