Legally, employees have certain protections that allow them to take family and/or medical leave when necessary, such as when dealing with a serious health condition – without jeopardizing their employment. Unfortunately, not all companies are willing to follow the law, and some will take retaliatory action against employees who choose to exercise their legal rights.
What should you do if you suspect you’re a target of this kind of retaliation?
What Is Medical Leave Retaliation?
First, let’s explain the basics of medical leave retaliation.
To understand that, we need to define what medical leave is. Under the Family and Medical Leave Act of 1993 (FMLA), employees of most companies are allowed to take up to 12 weeks of unpaid leave to manage a medical condition or the medical condition of a dependent – without being fired or facing retaliatory action.
For example, if you have a heart attack and you need a few weeks in the hospital to recover, you’ll be legally entitled to take that time off, unpaid, and return to your former position with all your previous pay and benefits in place. The same is true if your spouse or another close relative suffers a medical emergency and requires your care.
Retaliation for taking medical leave, then, is any destructive action taken by your employers because you chose to take medical leave under FMLA.
These are just a handful of examples:
- Wrongful termination. If you were terminated from your position as a direct result of your medical leave, it’s considered retaliation. Of course, if you were terminated for a separate reason (such as neglect or repeated violations of company policy), this gets more complicated.
- Refusal to hire. You may also be a victim of retaliation if a place refuses to hire you for a specific position because of your previous medical leave. This can be difficult to prove, since there are so many factors to consider when hiring.
- Changes to promotion and demotion decisions. It’s also considered retaliation if you’re overlooked for a promotion you would have gotten normally or if you’re actively demoted from your previous position.
- Removal of benefits. The same is true if you’re subject to a loss of pay or benefits.
- Removal of responsibilities. Some companies attempt to avoid legal action while still retaliating by removing or reducing some of your responsibilities. This is also retaliation.
- Disciplinary action. There are many types of disciplinary actions that are considered retaliatory, including docked pay, forced leave and suspensions, or write-ups.
Steps to Take If You Suspect Retaliation for Taking Medical Leave
It’s hard to know exactly when you’re the target of this type of retaliation, since the situation can be ambiguous. If you recently took medical leave and one of your peers gets a promotion instead of you, is that because you took medical leave or because they were simply better qualified?
That said, if you even slightly suspect medical leave related retaliation in your workplace, there are some important steps you’ll need to take:
- Remain calm and polite. You might be feeling angry or dejected about the matter, but it’s important to remain as calm and polite as possible. Doing so will ensure that you don’t invite further retaliation – and may prevent your employers from covering their tracks. If you end up talking to HR about the issue, this will also increase your chances of getting successful cooperation.
- Begin gathering evidence. The key to winning a medically related retaliation case is having ample evidence to support your claims, so start gathering evidence as early and as thoroughly as possible. Archive and save any emails, documents, or conversations that demonstrate the retaliatory action.
- Talk to a supervisor or HR rep. If you have a supervisor or human resources (HR) representative you trust, and one not directly involved in the retaliatory action, consider approaching them about this situation. No company wants to face a retaliation lawsuit, so they may work with you to resolve the issue. Come with specific details about what you’ve faced and ask if there’s a legitimate reason for the disciplinary action you’ve encountered.
- Voice your concerns and requests. Be specific about your primary concerns and what you’d like to see happen. For example, you may request to be reinstated at your previous position. If the conversation goes well, you may get what you’re hoping for.
- Talk to a lawyer. If you’re not making any progress or if you want to hold your employer accountable, be sure to talk to an employment leave retaliation lawyer as soon as possible.
Retaliation for medical leave is no joke, and it happens to thousands of people every year. If you’ve recently taken medical leave, or if you’re about to take medical leave, and you suspect adverse company actions against you, the preceding steps should be all you need to defend yourself and set a course for better career development.
