On April 27, 2018, after a two-day trial, a federal jury found a construction company liable for retaliating against an employee who took Family Medical Leave Act (FMLA) leave.  The jury awarded the employee $50,555 in damages.  The outcome is a reminder to employers to never entangle employee performance and discipline issues with an employee’s request for federally protected leave.

The case, Fry v. Rand Construction, involved Rand Construction Company and its employee, Arlene Fry. Although Fry had multiple sclerosis (MS), she performed her duties without incident until November 2016, when she had a series of heated encounters with Rand’s CEO that greatly increased her stress level.  The increased stress aggravated Fry’s MS, causing her to experience numbness in her leg, floaters in her eye, and other MS-related problems.

Fry’s doctor recommended two weeks off work to alleviate the stress.  Rand granted Fry the requested leave but required her to complete all pending projects beforehand.  Fry took three days to complete the projects, which delayed the start of her FMLA leave.

Upon returning, Fry continued to have altercations with Rand management.  This included rumors that Fry had fabricated her MS diagnosis and was vacationing on a cruise during her FMLA leave.  However, Fry also began to have noticeable performance issues.  She was making errors in placing orders and in scheduling deliveries and other events.  Eventually, Rand asked Fry to train her replacement and then voluntarily resign.  Fry refused the arrangement.  Shortly afterward, Rand terminated Fry, citing her declining performance and waning relationship with management.

Fry filed suit against Rand claiming disability discrimination and retaliation under the FMLA and Americans with Disabilities Act (ADA). The jury’s verdict in Fry’s favor of $50,555 could have been much worse; Rand managed to avoid a six-figure judgment, with evidence that after terminating Fry it discovered that she had taken several confidential company emails.  For the jury, these policy violations justified Fry’s termination and preempted the imposition of additional damages.

This case provides two vital lessons for employers.  First, employers must have a clear FMLA leave policy that is applied fairly and consistently to all employees, even if the employer suspects that an employee has ulterior motives in requesting the FMLA leave. Employers should require in their policies that employees provide documentation for FMLA leave requests, particularly for medical leave.

Second, employers should refrain from making any changes to an employee’s working conditions soon after his or her return from FMLA leave.  Most courts frown on an employer taking any action that significantly alters the employee’s working conditions in close proximity to the employee’s return from FMLA leave.  While Rand may have had valid grounds to terminate Fry, had Rand waited a few more months to terminate her employment and documented her performance issues, it may have avoided liability altogether.

Whenever questions arise regarding an employee’s request for federally-protected leave, like FMLA leave, it is best to consult an employment attorney prior to taking action.