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Timing is key to FMLA and disciplinary action

On February 5, 2018, the Family and Medical Leave Act will celebrate its 25th birthday. It was nearly two and a half decades ago that then-President Clinton signed the bill into law, thereby protecting employees who required time off for family or medical reasons.

Twenty-five years may seem like a long time, but in terms of the law it is still fairly young--indeed, the implications of FMLA are still unfolding in our courts today. In fact, two recent court decisions show that there remain many legal complexities regarding employment and FMLA.

Recent rulings

In the first case, Jennings v. Univ. of N.C., the North Carolina Court of Appeals ruled that an employer is not in violation of FMLA by proceeding with disciplinary action and termination due to an incident that occurred before an employee's leave. Still, employers must remain cautious when it comes to taking action against an employee who has taken FMLA leave: The second case, Diamond v. American Family Mutual Insurance Company, was not as favorable to employers. The court's decision shows that while an employer may terminate an employee for reasons unrelated to FMLA, the timing of the action is crucial. In this case, the employer was not able to obtain dismissal of the case becuase it began its misconduct investigation the day after the worker declared his intent to take leave under FMLA.

The consequences

As these two cases show, timing and optics matter. If the employer takes employment action adverse to the employee near the time an employee takes FMLA leave, it will become considerably more difficult for the employer to obtain a favorable dismissal of the lawsuit.

Act lawfully

If one of your employees must be disciplined or dismissed but has also invoked the FMLA, plan the process carefully. Document in writing and notify the employee of the employee's infractions. Consult with your company's human resources department or an employment attorney to prevent potential litigation.

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