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Preventing Family and Medical Leave Act Retaliation Claims in Florida

On Behalf of | Dec 17, 2018 | Firm News |


If you own a private business that employs more than 50 people, you may be obligated to offer Family and Medical Leave Act (FMLA) leave to your employees. Government agencies at all levels, as well as elementary and secondary school employees, regardless of how many employees there are, are also covered under the FMLA.

If your company offers FMLA benefits, there are still some additional qualifications the employee must meet prior to taking time off. Not every employee is automatically eligible. And, you have the right to terminate or discipline the employee for legitimate reasons, provided it is non-discriminatory and has no relation to their FMLA leave.

Qualifications for FMLA

Before an employee can take leave under the FMLA, they must meet the following criteria:

  • They must work for you for at least a year (12 months). It does not have to be consecutively, as seasonal work does count. However, any break that lasts more than seven years cannot be counted.
  • The employee has to have clocked at least 1250 hours in the 12 months prior to taking leave.
  • The employee must be a location where there are 50 employees within 75 miles of the worksite. This means that if you employ more than 50 people, but they are not located within the required 75 miles radius, your employee will not be eligible for FMLA leave.

Unlawful Retaliation

It is illegal to retaliate against an employee who takes FMLA leave. Examples of unlawful retaliation can include denying benefits to an employee on FMLA leave that other employees receive or using their leave as a negative aspect related to employment decisions.

The employee has to prove that he or she was engaged in a protected activity and that you took some type of negative action against them, and that your activity was connected to the employee’s FMLA leave.

You are then required to show there was a legitimate business reason for the action taken. The burden will then shift back to the employee who would have to show it was a coverup for unlawful discrimination.

How to Prevent Retaliation Claims

To prevent retaliation claims, the best thing you can do is to share your company policies early on, enforce them across the board, and ensure all actions are documents. Some additional steps include:

  • Hold regular training sessions for your management team.
  • Do not treat an employee on FMLA leave any differently than someone not on leave. This is where enforcement across the board is key. Letting someone else slide for something can spell trouble down the line.
  • Make sure no one is making disparaging remarks or comments in emails and other company correspondence about FMLA leave or whether someone’s claim is valid.
  • Keep up to date on special obligations the Americans with Disabilities Act (ADA) imposes when an employee’s reason for FMLA is also a covered disability under the ADA.
  • Discuss performance issues as soon as they are discovered, document counseling efforts, and ensure all employees are treated the same.

Retaining Florida Employment Law Attorney

If your company is facing an FMLA retaliation claim, it’s important you speak with a skilled Florida employment law attorney right away. Contact the team at Pincus & Currier LLP at 561-868-1340 to schedule a consultation.