Taking job-protected leave to deal with a serious illness or welcome a new child to the family is essential to workers all across New York. Unfortunately, there are people who qualify for this leave under the Family and Medical Leave Act but are afraid or unsure of what will happen if they take a leave of absence.
Many people are scared of retaliation from an employer, even though it is unlawful. However, you can take steps that protect you and your job if you are taking a leave of absence. One such step is to keep track of every exchange and correspondence related to your leave. This information can then be used as evidence, should your rights to take FMLA be violated.
One such example of this was recently resolved in another state. According to reports, a woman had been underperforming in her job for about a year; she even received a formal warning. She was then diagnosed with myelopathy and took about a month of leave for which she qualified.
Upon her return, her employer stated that she continued to underperform and ultimately fired her. This may not seem to be retaliatory, but the courts ruled in the woman’s favor based on one sentence found in an email.
The sentence appeared alongside an explanation of the woman’s performance problems and stated that she, “submits a request for a leave of absence.” The courts ruled that if that sentence had been left out, the termination could have stood. However, including the sentence amounted to direct evidence of discrimination; therefore, any other legitimate reasoning for a termination is irrelevant.
This case should reiterate the importance of keeping good records if you are thinking of taking FMLA leave. Keep every email, text, voicemail and any other message that deals with the leave. If you have a conversation with your employer, follow it up with an email restating any agreement that was reached.
With this information, you and your attorneys can build a case citing FMLA violations, wrongful termination or retaliation if necessary. For more details on these claims, it can be important that you consult your legal representative.
