Firing after FMLA leave: How soon is 'too soon' to trigger retaliation?

When it comes to the FMLA, courts will always pull out their calendars to see how closely the employee's protected activity (requesting or taking FMLA leave) coincides with the adverse action handed down by the employer (discipline, termination, etc.). The smaller the time, the bigger your risk of losing an FMLA-retaliation lawsuit.

For that reason, you should always use caution when terminating someone who's on FMLA leave or has just returned from it. The timing alone may trigger a claim.

Make sure you have rock-solid, documented reasoning of the performance or behavior problems. And recognize that even if you win (as in the case below), the "victory" may still cost you thousands in legal fees and lost time.

Recent case: Thelma worked for a medical company in Illinois for more than a decade. During that time she suffered various injuries that led to her taking FMLA leave on three separate occasions.

After Thelma returned from her third 12-week FMLA leave, she was told by her boss that a new employee had filled her position. She was transferred to another equivalent job. Over the next few months, she received written discipline for several performance problems. Five months after she returned from leave, she was fired for those problems.

Thelma sued, claiming she was actually fired for taking FMLA leave. But the court tossed out her claim, saying "five months is too long a period to suggest a causal link between her leave and termination ... and the complaint provides little else to bolster an inference of causation."

(Strong v. Quest Diagnostics, N.D. Ill)

The smaller the time between protected activity (requesting or taking FMLA leave) and the adverse action (discipline or firing), the bigger your risk of liability.

Use certifications to verify the need for FMLA: 5 steps

One of the trickiest parts of administering FMLA is figuring out whether an employee's condition qualifies for leave. Follow these steps to certify...