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Replacing an Employee While on FMLA Leave


Can you imagine suffering from a serious medical condition and, while you are out on FMLA leave receiving treatment, your employer replaces you? It happens more often than you may think. Under most circumstances, replacing an employee while he or she is on FMLA leave, is a violation of the Family and Medical Leave Act. Nevertheless, employers routinely replace employees while they are out, then assert various defenses for their actions. Recently, a federal court addressed this issue and found the employer's conduct to constitute FMLA retaliation.

Common defenses employers use in FMLA claims

Vanessa Budhun filed a lawsuit against her former employer, Reading Hospital and Medical Center, for replacing her while she was still on FMLA leave. In Budhun v. Reading Hospital and Medical Center, the employer asserted several defenses for its actions. The hospital claimed that Ms. Budhun was unable to return to work before her FMLA leave expired and that she was not actually terminated, but instead was considered to have resigned by not returning to work. The trial court initially ruled in favor of her employer, finding there was insufficient evidence to establish that she was terminated because she requested FMLA leave.

Appellate Court rejected the employer's defenses

Ms. Budhun appealed the trial court's decision, of course, and the appellate court reversed the prior decision. Among other things, the appellate court determined that she had suffered an "adverse employment action" when she was replaced. The appellate court defined an adverse employment action as an action that "alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee."

Although the trial court had ruled that Ms. Budhun resigned because she was unable to return before her 12 weeks of FMLA leave expired, the appellate court disagreed. In this case, the hospital permanently replaced her and told her to pick up her belongings and return her badge and keys. The hospital did not offer her any other job. The fact that she was not expressly terminated, was of no matter.

Sufficient evidence of FMLA retaliation

Under the Family and Medical Leave Act, an employer is "prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right." The appellate court determined that a jury could find a link between Ms. Budhun's FMLA leave and her termination. For one thing, there was evidence that the hospital had decided to replace her only a month after she requested FMLA leave. The court found this fact to be "unusually suggestive" of retaliation.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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