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What Is The Difference Between FMLA “Interference” And “Retaliation”?

by | Aug 11, 2022 | Employment Law, Family Medical Leave Claims, Federal Law Update, Retaliation, Wrongful Termination |

The Family and Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. These can include personal health issues, your spouse’s health issues, or your children’s health issues. A recent decision in the United States District Court for the Southern District of New York, which we will discuss today, dealt directly with the two types of claims that arise under the FMLA: “interference” and “retaliation”.

When do I qualify for FMLA leave?

Best Medical Leave Lawyer Answer: An employee becomes eligible to apply for FMLA leave when that employee (1) has been employed for at least 12 months by an employer covered under the FMLA; and (2) has worked at least 1,250 hours during the previous 12-month period. 29 U.S.C. § 2611(2). Generally, a “covered” employer under the FMLA is one who is “engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during . . . 20 or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C § 2611(4).

“The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each year if, among other things, an employee has a ‘serious health condition that makes the employee unable to perform the functions of the position of such employee.’” Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (quoting 29 U.S.C. § 2612(a)(1)(D)). A “serious health condition” is defined under the FMLA as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). As indicated above, an eligible employee may also utilize FMLA leave to care for a spouse or child (under the age of 18) suffering from a “serious health condition.” (Best Law Read: How Do I Use FMLA To Care For My Child?; What Are My Job Rights If I’m Suicidal?).

What is FMLA Interference?

Best FMLA Attorney Answer: Employers covered by the FMLA are prohibited from interfering with or denying the exercise of their employees’ rights under the statute. On “interference” claims, which our employment attorneys have discussed at length in previous posts, an employee has to prove five elements: (1) she was an “eligible employee”; (2) the defendant was an “employer” as defined under the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled. (Best Law Read: What Is An FMLA Interference Claim?; Can Your Employer Limit Your FMLA Leave?)

What is FMLA Retaliation?

Best Wrongful termination Lawyer Answer: Under the FMLA, it is also “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). To prove a “retaliation” claim under the FMLA, an employee must establish that: (1) she availed herself of a protected right under the FMLA by notifying her employer of her intent to take leave; (2) she suffered an adverse employment action; and (3) that there was a causal connection between the exercise of her rights under the FMLA and the adverse employment action. (Best Law Read: Retaliation Is Still Easier To Prove Than Discrimination; Firing Employee On FMLA Following Miscarriage Is Evil; What Are Examples Of Unlawful Retaliation At Work?). Thus, firing an employee for asking about or using FMLA is wrongful termination.

What is an example of an FMLA violation?

Best Employment Law Firm Answer:With this background, we will turn our attention to Benson v. Westchester Medical Center, et al., No. 20-CV-05076 (PMH), 2022 WL 2702544 (S.D.N.Y. July 12, 2022), in which the United States District Court for the Southern District of New York denied a motion to dismiss Plaintiff Roland Benson’s claims for FMLA interference and retaliation.

Benson, who was hired as a nurse by Westchester Medical Center (“WMC”) in October 2018, suffered from chronic asthma and bronchitis. Benson suffered intermittent asthma attacks throughout his employment with WMC, which caused him to miss work. After one such attack, on November 1, 2019, Benson submitted a note from his doctor to WMC — nonetheless, his absence from work on that day was marked as “unexcused.”

Benson suffered three additional asthma attacks on December 3, December 6, and December 13, 2019. After the attack on December 13, Benson visited WMC’s Integrated Disability Office (“IDO”), a subset of WMC’s Human Resources Department. While there, he was provided FMLA paperwork and told “that sick time needed for his asthma should not be held against him.” This was the first time anyone from WMC had told Benson that he could apply for FMLA leave. Subsequently, Benson’s doctor submitted his completed FMLA paperwork on December 16, 2019, and his intermittent leave was approved on December 20, 2019.

On January 10, 2020, during a meeting with Jill DelBello — Benson’s supervisor in WMC’s Endoscopy Unit — Benson suffered another asthma attack and left work to seek medical treatment (despite DelBello claiming Benson was not permitted to leave).

On January 13, 2020, Benson was informed that he was being suspended for one week without pay due to “time and attendance” issues. Shortly after this, Benson was suspended again on February 8, 2020 for the same reasons. In a letter sent to Benson in connection with the February 8 suspension, WMC claimed Benson was being suspended for “failing to meet the time and attendance standards of [his] position.” The letter referenced a written reprimand Benson received on December 18, 2019 for “time and attendance” and claimed Benson left work early on December 24, 2019 (i.e. Christmas Eve) without approval from a supervisor or manager. Ultimately, Benson’s employment with WMC ended and he filed suit.

WMC (and other named defendants) moved to dismiss Benson’s complaint in its entirety. Regarding the FMLA claims specifically, the Court declined to dismiss Benson’s interference and retaliation claims.

On Benson’s interference claim, the Court first noted that, pursuant to Department of Labor (“DOL”) regulations, “‘when [an] employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of . . . eligibility to take FMLA leave[.]” As the Court viewed it, WMC’s failure to notify Benson that his six pre-FMLA request absences (prior to December 20, 2019) may have been covered under the statute plausibly gave rise to a claim for interference under the FMLA. Specifically, the Court reasoned “it is plausible that, had Plaintiff been advised that his absences might fall under the FMLA, he would have been able to structure his leave in a way to avoid suspension without pay for time and attendance issues.”

On Benson’s retaliation claim, the Court disagreed with defendants’ argument that Benson had failed to plead a causal connection between any adverse actions taken against him and the exercise of his FMLA rights. Specifically, the Court noted the proximity between when Benson was first approved for intermittent FMLA leave (December 20, 2019) and the date he was first suspended for alleged “time and attendance” issues (January 13, 2020, or less than one month after he was granted leave). The Court concluded that this was sufficient to plead causation.

How do I know if I have an FMLA claim?

As with all claims of employment discrimination, it is important that you speak with an attorney to determine your rights as an employee. If you believe your right to FMLA leave has been or is being interfered with, or that you have been disciplined or fired for exercising your FMLA rights, then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati and Raleigh to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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