Besides providing for leave of absence for an employee’s serious medical condition or a close family member’s medical condition, FMLA (family medical leave act) makes it illegal for employers to retaliate against employees for exercising their right to medical leave under FMLA or CFRA (California Family Rights Act). This means that disciplining, demoting or terminating an employee for taking medical leave under FMLA is illegal and grounds for a wrongful termination lawsuit. This issue usually arises when the employer initially approves an employee’s FMLA leave, but then during his/her leave or shortly after that medical leave expires, the employer decides to dismiss the employee or lay that employee off due to the alleged restructuring, which in effect does not take place and during which only one employee is laid off.
Like in many other types of employment and wrongful termination case, chronology of relevant events is very important to proving your case. One critical element is existence or non-existence or any performance issues before requesting or going on FMLA medical leave. If your record before that leave was perfect and the problems only started later, there will at least be a suspicion that these alleged performance issues are an attempt to set you up for termination. If, on the other hand, you had significant performance issues, at least from the employer’s perspective, before going on leave, this will make proving your case more challenging, especially if it looks like you knew that you were falling down the termination stairway and you were trying to hang onto your job by going on medical leave.
Proving FMLA retaliation claim often requires showing, in addition to the timing of the events, that the reasons for an employee’s discharge provided by the employer are either untruthful or inconsistent or both. One such classic situation is where an employee is terminated for alleged performance issues, even though his performance record before taking medical leave was very good or outstanding and he received a number of bonuses or promotion or awards or recognition letters for good performance.