RIF of worker on medical leave creates problems

Under the Family and Medical Leave Act, people who work for companies with more than 50 employees are generally entitled to take up to 12 weeks of unpaid leave per year in order to deal with a medical condition, care for a new baby or tend to a sick family member.

But can an employer lay off a worker on FMLA leave for economic reasons, like as part of a companywide “reduction in force” (RIF)?

In most cases, the answer is “Yes.” But employers still need to tread carefully, because if the employee can show evidence that his or her FMLA leave contributed to his or her inclusion in the layoffs, the employer could get hit with an FMLA retaliation claim.

This happened recently in Connecticut where a line supervisor at a Sikorsky helicopter plant took leave to care for his parents, who had serious health issues. He received 80 days of intermittent leave per year, usually taking about two days of leave per week.

Ultimately he became one of 250 employees who lost their jobs in a RIF after receiving low scores in the company’s RIF assessment.

The employee sued, claiming his termination constituted illegal retaliation for taking FMLA leave. He also argued that the low employee ratings he received during the company’s RIF assessment weren’t the real reason he was fired — they were simply a “pretext.”

Sikorsky moved to dismiss, but a federal judge said the case could proceed to trial. Specifically, the court found enough evidence to suggest that a manager’s supposedly neutral evaluation of the employee in the RIF assessment was influenced by hostile feelings over his use of FMLA leave. For example, the manager had on previous occasions acted disgusted by the employee’s inability to be at work every day. The manager had also apparently required counseling from HR about employees’ FMLA rights and had at one point tried to transfer the employee to a lesser position due to unhappiness over his leave.

So if you’re a worker who lost your job in a mass layoff but you think you were included for unfair reasons, talk to an attorney to see what kind of case you might have. And if you’re an employer contemplating a RIF, consult with an attorney to make sure you’re doing it in the most neutral, objective way possible, or you could find yourself in court.

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