What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fourteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not fully analyzing the impact of an adverse employment action taken close in time to FMLA leave.

The FMLA is not designed to shield an employee from termination to which the employee would otherwise be subject. However, employers should be aware of the significant role that “temporal proximity” of termination to a protected leave can play in an FMLA lawsuit. Avoiding liability is sometimes more complicated than simply being justified under the law.

In Ethridge v. Nichols Aluminum – Ala., LLC, No. 5:14-cv-02126, (N.D. Ala. Aug. 31, 2016), the employee was terminated immediately upon returning to work from FMLA leave. The court stated that all an employee needed to show to state a claim for FMLA retaliation is that the employee took protected leave and was terminated shortly after returning to work. The court stated, “the timing of Ethridge’s request to return to work is close enough in temporal proximity to establish a causal connection between his FMLA leave and his termination.”

However, in Lopez v. Lopez, et al., No. 2:10-06374 (D.N.J. Feb. 4, 2014), even though the employee, as in Ethridge, had stated a valid FMLA claim due to close timing, the employer was able to respond with evidence of a valid reason for termination, unrelated to FMLA leave. In Lopez, the employer was able to establish that the reason for termination was based on the employee’s disruptive, unprofessional conduct, and not related to FMLA leave.

In Lopez, the court ultimately found that the employer acted lawfully – but only after the employee filed a federal lawsuit and the parties engaged in litigation.

Because the courts place significant importance on the timing of FMLA leave to an employee’s termination from employment, employers should fully analyze the potential impact of such an employment decision before moving forward with termination or other adverse employment action, such as discipline. Clear documentation supporting the non-FMLA reason for an adverse employment action is crucial in supporting the non-FMLA reason for termination.