CASE: “No more free rides” for employee on leave for cancer


Court eyes supervisor statement

From January 2002 to August 2018, Jeffrey worked as a director of business development for a large construction company. In 2014, he was diagnosed with a rare bone cancer that required treatment and leave from April 2014 until May 1, 2015. Part of that leave was protected by the Family and Medical Leave Act (FMLA), and the rest was a reasonable accommodation under the Americans with Disabilities Act. Jeffrey returned to work with continued accommodations, including flexibility to attend medical appointments.

In 2017, a second director of business development was hired. That same year, Jeffrey took FMLA leave from September 8, through November 15. Michael expressed frustration at the fact that Jeffrey’s leave was disrupting the company’s business.

On April 15, 2018, Jeffrey again took FMLA leave, with an anticipated return date of June 18.

Jeffrey told Michael, however, that he might need more FMLA leave again in September. In discussing this with Robert, the company’s HR director, Michael said “the bottom line was I told him it’s time to produce — there are no more free rides anymore.”

On August 13, Michael, Robert, and others met with Jeffrey to discuss his termination. Michael said his position was being eliminated, since they didn’t need two business development people. Jeffrey sued the company, Michael, and Robert, for FMLA retaliation.

The court indicated that a juror could find that the discussions of Jeffrey’s indication of the need for more leave and the timing of the termination, along with the perception that he was being given a “free ride” point to retaliation.

Therefore, the company and the individuals named in the claim will need to continue to defend their actions. A little supervisor training could have avoided the claim altogether.

Key to Remember: Making disparaging statements about an employee’s taking FMLA leave seldom looks good in a court, particularly when the employee is terminated shortly after those remarks are made. Supervisor and manager training can help avoid such issues.

Seigel v. Structure Tone Organization et al., Southern District of New York, No. 7:19-cv-07307, October 24, 2022.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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