On December 13th, 2023, the Eleventh Circuit of Appeals made a significant decision in favor of Walgreen Co., impacting the Family and Medical Leave Act (FMLA) landscape in Florida, Georgia, and Alabama. This decision places greater accountability on employees seeking protection under FMLA against retaliation.
To establish a case of FMLA retaliation, employees must now prove that an adverse employment decision, such as termination, occurred specifically because of the leave request. Stating that an FMLA request merely contributes to termination is no longer sufficient. This places an increased burden of proof on employees, making it more challenging to bring successful retaliation claims against employers.
Implications for Employees
This recent decision highlights the importance of understanding the intricacies of FMLA retaliation claims. Employees must now provide compelling evidence that their termination was a direct result of the leave request, adding complexity to the process of seeking protection under FMLA.
Strategies for Employers to Mitigate Retaliation Risks
Given the increased burden on employees, employers must take proactive measures to avoid the appearance of retaliation following an employee’s leave request. Here are three key strategies to consider.
1. Clear and Timely Communication
Ensure that your leave request policies have a clear and accessible process. Respond to leave requests promptly, preferably through email to eliminate potential time delays and lost responses. Provide employees with transparent documentation that explains any lengthy or complex paperwork, fostering a smoother and more definitive communication process.
2. Supervisor Training
Thoroughly train supervisors to refrain from considering leave requests during annual reviews. For example, when preparing for any evaluations or reviews, ensure you have set the precedent that no discussion around FMLA will be addressed and should always be kept out of standard evaluations and any disciplinary actions.
It is crucial to isolate the decision-making process regarding leaves from other employee functions. By doing so, employers can reduce the likelihood of bias or undue influence on the leave approval process.
3. Consistency in Employee Treatment
Consistency is key when handling leave requests. Treat all employees equally regardless of an employee’s status or the reason for the leave request. Avoid favoritism and ensure that your company’s policies are applied uniformly to mitigate the risk of potential retaliation claims.
While administering FMLA can be tedious and complex, consistent and correct implementation is crucial to avoiding potential claims. By staying informed on all FMLA updates and implementing these strategies, employers can proactively manage the risks associated with FMLA and create a fair and supportive workplace for all employees.
If you need help navigating complex compliance issues such as this, connect with Team Totem today.