John A. Klassen, PA Minnesota Employment Law Attorney
612-217-4988 877-390-4527

Employees are protected after taking FMLA leave

The federal Family and Medical Leave Act, or FMLA, has been a mainstay in employment law for about a generation now. Basically, the FMLA allows many, if not most, employees to take a leave of absence from work for their own documented medical reason, including pregnancy and childbirth, or to take care of certain sick relatives.

During an FMLA leave, an employer must hold the job of the absent employee open or be ready to offer an equivalent position when the employee returns. Although the leave of absence need not be a paid leave, an employer cannot discriminate against or try to punish an employee for taking a valid FMLA leave, whether during the leave itself or after the employee returns to work.

While this rule prohibits flagrant discrimination, like firing someone for absenteeism or refusing to approve an obviously valid FMLA request, it is also bars employers from engaging in more subtle forms of discrimination. For instance, the fact that an employee uses FMLA leave cannot in any way play into that employee's work evaluation. Moreover, employers may not use "no fault" attendance policies, where all time away from work is treated equally, as a way to effectively single out those who needed to take a few days or weeks off for FMLA.

Finally, as with any case of employment discrimination, a Minnesota resident who has had to take FMLA time should be on the lookout for so-called pre-textual reasons an employer may use for retaliating against someone who took FMLA leave.

Any discipline or adverse action on the heels of an FMLA leave is suspect, but employers may try to use an obscure rule violation or vague concerns about performance or productivity to mask retaliation for taking time off. Twin Cities-area workers have the right to time away from work under the FMLA. When they are unfairly punished for doing so, they may want to explore their legal options.

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John A. Klassen, PA
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