What Do You Think: Can Worker Sue for FMLA Retaliation after Taking 12-weeks of Leave?

Chicago, IL (WorkersCompensation.com) – An employer may voluntarily extend a worker’s medical leave beyond the 12 weeks authorized under the FMLA. But does that also extend the worker’s ability to sue over retaliatory acts? 

A federal District Court in Illinois recently addressed that issue in considering whether a Boeing employee with anxiety and depression could continue with his FMLA retaliation lawsuit against the company, after it gave him two extra years of medical leave. 

The employee took FMLA leave in May 2015 due to his conditions. He stated that at that time, managers began soliciting documents to manufacture a record of poor performance, so they could justify terminating him. 

After 12 weeks of leave, the employee requested additional medical leave, citing continuing struggles with anxiety and depression. The company granted the worker a two-year leave of absence extending until Nov. 10, 2017. 

The employee claimed that after he requested the extra leave, managers continued to cook up a pretext to terminate him. One email amongst management allegedly stated: “The question here is how long is this allowed to go on.”  

The employee stated that while he arranged with human resources to return to work in November 2017, a group of managers were plotting against him. When he returned to the building, he was informed that he had been terminated. 

The employee sued the company for FMLA retaliation. The company argued the claim should be dismissed because the worker wasn’t protected by the FMLA. 

To establish an FMLA retaliation claim, an employee must show, in part, that the company took adverse employment action against him because he asserted his rights under the FMLA 

Did the employee have a viable retaliation claim? 

A. No. He was not within the class of individuals protected by the FMLA. 

B. Yes. He plausibly stated that he was fired, not only because of the additional leave, but because he took the 12 weeks of FMLA leave. 

If you picked A, you agreed with the court in Mims v. The Boeing Company, No. 18-cv-00264 (N.D. Ill. 06/128/22). 

The court pointed out that when an employee’s medical issues that prevent him from working continue beyond the 12-week period, the FMLA no longer applies.  

“Even if he could prove his allegation that his employer began creating a pretext to fire him while he was on FMLA leave, the fact that he remained unable to work removes him from the class that benefits from the FMLA's [protections],” the court wrote.  

The purpose of the FMLA, the court observed, is to protect employees from their employers’ adverse actions while they are on FMLA leave—not to provide protection during additional leaves of absence that a company may decide to offer the employee. Were the law otherwise, the court wrote, employers would have little incentive to offer additional leave and employers might be less generous for fear of incurring liability for not holding positions indefinitely.