FMLA covers employees even after 12-week period
Published 12/16/05

An employer may still be liable for retaliation against an employee who seeks employment leave under Federal law, even if that employee is unable to return to work within the twelve week period allotted under the law. This point was illustrated in the November 18, 2005 Federal First Circuit Court of Appeals case of Brian Colburn v. Parker Hannifin/Nichols Portland Division .

The decision was from an appeal from the Maine Federal Trial Court. However that Court of Appeals also hears appeals from the New Hampshire Federal Trial Court.

In that case, Brian Colburn was terminated from his job as a machine operator at the Nichols Portland Division of Parker Hannifin Corporation. Colburn sued, claiming that he was fired for having taken leave protected under the Family and Medical Leave Act ("FMLA").

Nichols responded that he was fired because he told the company he was out sick with migraines when he was seen by its investigator going to the gym, shopping, and driving around doing errands.

The Court ruled in favor of Nichols, finding that no reasonable jury could conclude that Colburn was fired in retaliation for exercising his FMLA rights, and therefore, Nichols did not have to defend its actions in front of a jury. However, the Court also noted that even though Colburn had admitted that he would not be able to return to employment within the time allotted under federal law, he still could have a viable retaliation claim but for the fact that he had lied to his employer.

The FMLA provides an eligible employee to a total of twelve work weeks of unpaid leave which may be taken intermittently when medically necessary for a serious health condition that makes the employee unable to perform the functions of his job position. With limited exceptions upon the employee's return from qualified leave the employer must reinstate the employee to the same position or an alternate position with equivalent pay, benefits and working conditions and without loss of accrued seniority.

Furthermore, while the employee is out on leave the employer is prohibited from discriminating against the employee, and therefore if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits) the same benefits would be required to be provided to an employee on unpaid FMLA leave.

By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions such as hiring, promotion or disciplinary action; nor can FMLA leave be counted under "no fault" attendance policies. This law prohibits retaliation for taking FMLA leave.

This case is a helpful reminder to employers that they should be cautious when they receive evidence that an employee on FMLA leave will not be able to return to work during the twelve week period in terminating the employee before the twelve week period is up in that it is possible that the employee may thereafter use that as evidence for a retaliation claim.

An employer when faced with this situation should speak with its employment counsel to determine what is the best strategy under the specific facts and circumstances of the case.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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