Category Archives: Pregnancy Discrimination

The Family and Medical Leave Act gives certain employees the right to take up to twelve weeks of unpaid leave to care for a new baby, to fight a serious medical condition or to care for a dependant family member. It was President Clinton’s very first piece of legislation and is considered groundbreaking for its acknowledgment that many families are one medical condition away from bankruptcy and that women, more so than men, are subtly punished for having a child. But unlike most employment statutes that require intentional misconduct by the employer, the FMLA is a “strict liability” statute. The company has an affirmative obligation to compy with the FMLA, and when it fails to do so, even unintentionally, it could face serious monetary penalties.
The biggest problem area facing both employees and employers is the “right to return to work” provision. Employers must return a person on FMLA leave to the same or equivalent position, except in the rare circumstance where the position is no longer available due to reasons “wholly unrelated” to the FMLA leave. Two recent cases filed in federal court in Miami highlight the potential danger for employers. First, in Marks v. Orion Medical Enterprises, the employee was denied reinstatement after taking FMLA leave, purportedly because the employee was not physically capable of returning to work. (In the interest of full disclosure, the case against Orion was brought by the author of this blog). Second, in Guzman v. Royal Caribbean Cruises, the employee was returned to work after taking FMLA leave, but according to the complaint, the employee’s temporary replacement assumed the employee’s responsibiltiies and the employee who took leave was essentially shunned by the company upon returning to work.
It is common for employers to use an employee’s FMLA leave to try out new or temporary employees or to “shake things up.” But this is illegal and it frequently gets employers in trouble. Even if the employer did not intend to discriminate against the employee who took FMLA, the company is still violating the FMLA by failing to reinstatement the employee to the same or equivalent position.
If you are contemplating taking FMLA leave, you should contact an experienced FMLA employment attorney before you take leave to make sure that your rights are protected ahead of time.