Professional Service Agreement

Employee Proved FMLA Retaliation for Seeking Leave to Care for Autistic Child

January 23, 2017

An employee proved she suffered retaliation for seeking leave under the Family and Medical Lave Act (FMLA) to care for her autistic child. The court held that the FMLA entitled the Employee to take leave necessary "to take care of a very difficult (at times violent) sick child," and evidence at trial supported the jury’s verdict that she was retaliated against for exercising her FMLA rights.

The decision by the Seventh Circuit Court of Appeals serves as a vivid reminder that employers must tread with great caution when managing intermittent leave under the FMLA. As the ruling in highlights, making abrupt changes in leave accommodations or providing misinformation about leave rights can have serious consequences.

Employee had an autistic two-year-old son. In July 2011, Employer granted Employee intermittent FMLA leave to take her child to medical appointments and therapy. Employee's mother took care of the toddler three days a week while Employee was at work; for the remaining two days, Employee relied on daycare. In February 2012, the child was expelled from daycare due to his autism-related aggressive behavior. To cover the childcare gap, Employee asked Employer to allow her to work from home two days a week so she could provide the needed care and work as time allowed. Employer agreed, with the proviso that, if Employee needed to take time off work intermittently during the workday to attend to her son,the time would be counted as intermittent FMLA.

This arrangement continued for almost five months until Employer, facing financial difficulties, terminated all work-from-home arrangements in the summer of 2012. On a Friday in July 2012, Employer's human resources officer instructed Employee that the change would take effectthe following Monday. Thereafter, Employee would be required to work on company premises eight hours a day, five days a week. Employee tearfully protested that it would be impossible to secure alternative care over the weekend. In response, the officeradvised – falsely – that FMLA only covers leave formedical appointments and therapy. In fact, Employee was also entitled to take FMLA leave to provide care to her autistic child.

Employee went to the office that Monday and informed the human resources officer that she had been unable tofind a caregiver. The replywasthat the first time she did not work a full day at the office, Employer wouldconsider Employee a “voluntary quit.” Needing to attend to her son, Employee went home, never to return. She was terminated that same day.

Employee sued, alleging that Employer had both retaliated against her for asserting her right to FMLA leave and interfered with her FMLA rights. After a three-day trial, the jury found for Employee on her retaliation claim, but not her claim of interference. Employer appealed the verdict. The Seventh Circuit affirmed, finding that the jury had reasonable grounds to find retaliation. Employer had allowed Employee to work from home without any issue for nearly five months and had no compelling reason to fire her. A jury could reasonably infer that Employer was angry because Employee had asked to stay home two days a week and to useintermittent FMLA leave on those two days when sheneeded time off to provide care for her child.

Employer also sought to overturn the imposition of liquidated damages, which doubledthe actual damages award. Liquidated damages are awarded automatically unless the employer proves it acted in good faith. The Seventh Circuit ruled against Employer, persuaded that Employer’s “phony line” that FMLA could be used only for doctor’s appointments and therapy did not demonstrate good faith.

This case is but one example of the treacherous waters an employer must navigate when making changes to special intermittent FMLA leave arrangements. The FMLA does not itself grant a right to work from home. Butit is not uncommon for employers to allow employees serving as caregivers to use a combination of FMLA leave and telecommuting. When it comes to such arrangements, good communication is key. The terms and conditions should be expressly agreed to and well documented. And once in place, any change must be thoroughly substantiated and implemented with great care.