When you take leave under the Family & Medical Leave Act, it’s safe to assume you’re already under some stress. It can be good stress, like taking time off to be with a new baby. Or it can be difficult, emotional distress, if, for example, you are taking time off to care for a terminally ill loved one.

Unfortunately, an added stress for some employees while on leave is the fear of their employer retaliating against them for taking time off. Understanding what is considered FMLA retaliation is crucial in these situations.

If you believe that you’ve been experiencing any of the following forms of what may be considered workplace retaliation, know that you don’t have to endure it alone. An employment attorney can identify whether your employer has complied with the provisions of the Family and Medical Leave Act and pursue your claim if the employer has violated your rights.

What Protections Are You Entitled to Under the Family & Medical Leave Act?

The Family & Medical Leave Act (FMLA) is specific about the coverage and benefits it offers. It provides employees with unpaid, job-protected leave when they are unable to work because of their own serious health condition or because the employee needs to care for a family member with a serious health condition.

When it comes to taking leave, it’s not an “all or nothing” situation. You don’t have to take the full 12 weeks at once. Depending on your circumstances, you can take leave in multiple, smaller blocks of time, or you can work while taking leave as needed—known as “intermittent leave.”

This flexibility is where we often see retaliation, particularly when clients work part-time while on leave. Subtle changes in the work environment can escalate into retaliatory events and actions.

What is considered FMLA retaliation in part-time or intermittent leave situations?

• Unrealistic Work Expectations: If you’re assigned full-time duties while on a part-time schedule, this can create an impossible workload. If you’re unable to meet these demands, it might lead to unjust termination.
• Demotion or Reduced Salary: Being told you cannot work part-time in your current role, or being told that you cannot take any more intermittent leave, and then being demoted or having your salary reduced, can be a form of retaliation. This is especially concerning if the new position doesn’t match your qualifications or previous status.
• Exclusion from Meetings or Projects: Systematic exclusion from meetings or projects you were involved in before can signal retaliation. This can impact your visibility in the company and limit your opportunities for advancement.
• Negative Performance Evaluations: Receiving poor performance evaluations based on reasons that seem to correlate with your FMLA-prompted part-time status or correlate with your FMLA-related absences can be another form of subtle retaliation. Time off under the FMLA may not be held against you in employment actions, such as promotions or discipline.
• Discipline for Taking an Approved Absence. Being “written up” for taking an approved, FMLA-related absence, such as taking a day off to attend doctors’ appointments, will most likely be looked at as the employer assigning negative influence to an employee taking approved FMLA leave, which is prohibited under the FMLA’s anti-retaliation provision.

What is considered FMLA retaliation after taking leave?

Retaliation can also occur after returning from a single block of time type of leave (for example, after taking twelve straight weeks of leave to recover from surgery). The FMLA requires that you be restored to your original or equivalent position, but this does not always happen.

• Demotion or Lower Pay: Finding yourself in a lower position or with reduced pay upon return can be a sign of retaliation, particularly if the new role is significantly different from your previous one.
• Loss of Seniority: Being forced to start over in terms of seniority or tenure within the company undermines your previous contributions and career progress.
• Ineligibility for Promotions: If you suddenly become ineligible for promotions for which you were previously qualified, this might be a retaliatory action.
• Exclusion from Key Accounts or Responsibilities: Being kept off prestigious accounts or responsibilities you once handled can limit your professional growth.
• Diversion to a “Mommy Track”: This term refers to being sidelined in a way that limits your career advancement, often based on assumptions about family responsibilities after taking FMLA leave for the birth of a child or adoption of a child.
• New, Strenuous Tasks: Being required to perform tasks in your new position that were not part of your previous job, especially if they are physically demanding or unrelated to your skill set, can be a form of retaliation.
• Denial of Resources: Being denied access to training or resources that were previously available to you can hinder your job performance and professional development.
• Delays in Benefits: Experiencing unexplained delays or barriers in reinstating your previous benefits or privileges can be a subtle form of retaliation. If you take FMLA leave, your employer must continue your health insurance as if you were not on leave (you may be required to continue to make any normal employee contributions).
• Isolation from Team Activities: Upon your return, if you find yourself being systematically excluded from team meetings, brainstorming sessions, or any collaborative projects, this could be a subtle form of retaliation.
• Termination. Perhaps the most obvious form of retaliation is termination. Being fired shortly after returning from FMLA leave may suggest the leave was considered by your employer in its decision-making process. This is known as “temporal proximity.”

These examples, by themselves, may not amount to FMLA retaliation, but experiencing several of these actions can amount to an adverse employment action, resulting in FMLA retaliation. Understanding what is considered FMLA retaliation is crucial. If you encounter any of these situations, documenting the occurrences and seeking legal advice is important. An employment attorney can help determine if your rights under the FMLA have been violated and guide you on the steps to protect those rights.

^{1 Certain key employees may not be guaranteed reinstatement to their positions following FMLA leave. A key employee is generally defined as a salaried, FMLA-eligible employee who is among the highest-paid 10 percent of all the employees working for the employer within 75 miles of the employee’s worksite.}

Effective Responses to Suspected FMLA Retaliation

If you find yourself in the unsettling position of facing retaliation after taking FMLA leave, it’s essential to navigate this challenge carefully and promptly. Here’s what you can do:

• Document Everything: Start by documenting any potential retaliatory actions. This can include emails, text messages, notes taken contemporaneously from phone calls, or any conversations related to your leave and subsequent treatment. Detailed records can be vital in establishing a pattern of retaliation.
• Understand Your Rights: Knowing about the FMLA is empowering. It helps you to recognize when your rights are being infringed upon and forms the foundation for your response.
• Internal Reporting: Sometimes, solutions can be found within your workplace. Bringing your concerns to a human resources representative or a trusted manager may lead to resolution without needing to take further steps.
• Seek Support: You’re not alone in this. Colleagues who might have witnessed similar behaviors or who are supportive of your situation can be a significant source of strength.
• Consult with an Employment Attorney: If the situation does not improve, or if you feel your concerns are not being addressed, consulting an employment attorney is a wise step. They can offer tailored legal advice and support, helping you understand what is considered FMLA retaliation and how to navigate these complex situations.
Formal Complaints: There are avenues for formal complaints, such as with the U.S. Department of Labor or the EEOC, if you believe you are also experiencing disability or pregnancy discrimination. An attorney can guide you on whether this step is appropriate in your situation.
• Mediation or Litigation: These are options, if necessary, but they come with their own set of challenges and stresses. It’s a path to consider carefully, often with legal guidance.
• Take Care of Yourself: Facing workplace challenges like this can be stressful. Remember to take care of your mental and emotional health. Support from professional counselors or support groups can be invaluable.

In these challenging situations, it’s important to remember that you have rights and there are steps you can take to defend them. Facing FMLA retaliation is not easy, but with the right approach and support, you can navigate through it.

What to Do Next

If you’ve encountered any of the scenarios described above or similar ones, you might be facing what is considered FMLA retaliation for taking job-protected leave.

Remember, documenting the details of the actions you believe constitute retaliation and those involved with them is helpful to show a pattern of retaliation. Collect communications about your demotion or the negative employment action you are experiencing.

Then, consider contacting an employment lawyer experienced in the Family & Medical Leave Act.

At Wenzel Fenton Cabassa, P.A., we can evaluate your personal circumstances to determine whether your employer has violated the provisions of the FMLA and then take steps to protect your rights. Contact us today for a free case evaluation.

Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.