Atlanta Employment Attorneys Blog
The Family and Medical Leave Act provides strong protections for workers who need leave. These include things like being reinstated to the same or a similar position after returning from leave. As with most legal concepts, this protection is not absolute. The law carves out exceptions, such as when the employer has evidence that it would have demoted or fired the worker even if they had never gone on FMLA leave. Whether you are a worker or an employer, you should talk to an experienced Atlanta FMLA lawyer if you have questions.
An FMLA case from nearby Douglas County shows how this concept works and how an employer can use it successfully.
E.P., the employee, was a deputy chief with the county fire department. Soon after he started, the State of Georgia altered its requirements for firefighter certification, requiring both hazardous materials (hazmat) awareness training and hazmat operations training.
The deputy chief had until July 31, 2022, to complete both sets of testing. The deputy chief completed both training courses on July 29, 2022, but failed the awareness training. He successfully completed that training in mid-August, two weeks after the July 31 deadline.
On February 27, 2023, after the state informed the department that E.P. was no longer certified as a firefighter, the department stripped him of his deputy chief position and told him to report to work in civilian clothes. The next day, E.P. applied for FMLA leave, which the department approved through mid-March. When E.P. returned from FMLA leave in March, he remained a department employee, but he had no official duties and was not listed on the roster of firefighters.
Four months later, the county terminated E.P. Thereafter, he sued for, among other things, FMLA interference and retaliation.
As the court explained, establishing an FMLA interference claim only requires the employee to demonstrate that (1) he was entitled to a benefit under the FMLA and (2) his employer denied him that benefit. The law does not require that the employee show intent, because an employer’s motives are irrelevant and an unintentional denial is just as much a violation of the law as an intentional one.
The crux of the firefighter’s claim was that the department wrongfully failed to reinstate him to his old (or an equivalent) position when he returned from FMLA leave. By failing to do so, the department functionally “stripped [E.P.] of his duties on the very day he returned from protected leave.”
In general, the FMLA requires employers to reinstate employees to the same or a similar position as the one they held before taking FMLA leave, but that is not always true. One scenario involves an employer who can show that it would have fired or demoted an employee on leave even if they had not taken leave. In E.P.’s case, the department had evidence that it removed the man from his deputy chief role because the state refused to certify him as a firefighter, which made him unqualified for the role he held. E.P. did not have evidence to contradict the employer’s argument that would have taken the same regardless of E.P.’s FMLA leave. As a result, this part of the firefighter’s case failed.
Retaliation
In matters of FMLA retaliation, few workers have direct evidence that their employer punished them for taking FMLA leave. Most workers, as a result, must rely on circumstantial evidence. One of the most potent forms of circumstantial proof is timing. If you requested FMLA leave on Tuesday and your employer fired you on Wednesday, that is strong evidence that retaliatory motives influenced the firing. If an employee makes an FMLA request in January and their employer fires them in July, that employer is in a stronger position regarding retaliation, as a gap that big is typically considered too remote to permit an inference of retaliatory motive.
In E.P.’s case, he requested FMLA leave in late February. The department continued to employ him until sending him a Notice of Proposed Termination in late June. This nearly four-month gap was too long to provide an evidentiary link that the FMLA request caused the termination.
If you have questions about FMLA interference and retaliation, we are here to provide you with reliable answers and advice. The experienced Atlanta FMLA interference attorneys at Parks, Chesin & Walbert have spent many years helping both employees and employers navigate this area of the law, and are eager to assist you. Contact us through this website or at 404-873-8048 to schedule a consultation today.