Employers May Not Retaliate Against Employees Who Take FMLA Leave

This won't be earth-shattering. It will eliminate any doubts (that most employers didn't have in the first place).

A Dollar General store in Tennessee fired a computer programmer who had a serious health condition. The project on which she was working was behind schedule and missing deadlines. Shortly after she requested FMLA leave, Dollar General began imposing discipline on her. A few weeks later, she was fired. She said at trial that when she was terminated, a supervisor told her "because of your health, I don't think you can do the job." The jury found Dollar General had fired the employee because she took FMLA leave.

On appeal, Dollar General argued that the FMLA does not prohibit employers from terminating employees who have taken FMLA leave. Read literally, Dollar General was correct. The relevant statutory language simplys says that it is unlawful to discriminate against someone "for
for opposing any practice made unlawful by this subchapter." An individual who requests FMLA leave exercises her rights under the FMLA but doesn't necessarily do so by saying the employer is engaging in an "unlawful" practice. Of course, the DOL FMLA regulations say: "employers cannot use the taking of FMLA leave as a negative factor in employment actions" but regulations cannot increase the rights that Congress chose not to add.

The problem is, as the court recognized, that the right to take FMLA would be all but meaningless if an employer could use that leave against the employee. Courts have, moreover, been willing to imply a retaliation prohibition even where the statute does not expressly prohibit retaliation, as I explained in a prior post. It is hardly surprising, therefore, for the Sixth Circuit to read the FMLA as protecting employees because they had exercised FMLA rights. (Given these other decisions, I find some of the Sixth Circuit's reasoning unnecessary but I can't quibble with the results.)

The decision isn't going to come as a shock to most employers in Tennessee. Still, there is merit to reminding Tennessee employers that they should exercise caution and use some common sense when imposing discipline on employees who have taken FMLA leave.