Ask The Lawyer By: Daniel A. Gwinn, Esq. – Family and Medical Leave Act


QUESTION:  I’ve been working or my current employer full time for several years now. Several months ago I began to have some medical issues, and I applied for intermittent leave — two days per month — under the Family and Medical Leave Act (FMLA), so that when I was absent it would not count against me. I have used a total of six days since then. Just about two months ago, my boss told me I was being considered for a promotion, but he warned me I needed to cut back on my “days off” because someone reliable was needed for the position. I tried not to take any days off, working through a lot of pain, but after four weeks without missing a day, I felt so ill I had to use some of my leave and missed another two days. Last week, my co-worker, who is less qualified than me, was hired for the position. I feel I was punished for taking FMLA. Isn’t that illegal?


ANSWER: Maybe. The FMLA entitles qualifying employees up to 12 weeks of leave for their own serious health condition or that of a family member, among other reasons. Employers may not take an “adverse employment action” against workers because they took FMLA leave. Examples of an adverse action include placing a worker on a performance improvement plan, moving the worker to a less desirable position, demotion, and — as in your case — failing to promote.

To establish a case of FMLA retaliation, according to the federal Sixth Circuit court, an employee must show that (1) he or she engaged in an activity protected by the Act (i.e. requested or took leave); (2) that a decision maker took an adverse action against the worker; (3) that the person who took the adverse action knew about the “protected activity”; and (4) that the protected activity and the adverse action were causally connected.

The last element is usually the hardest to prove. When faced with a claim that they retaliated against someone for taking leave, employers usually produce a neutral reason — not related to FMLA — for the adverse action: The worker was inefficient; the worker was dishonest; the worker had been on a performance improvement plan for a long time; the worker took “leave” without giving any advance notice, etc. In a “failure to promote” case, employers often argue that the candidate who received the promotion was more qualified. If the person who was promoted was less qualified than you, you may have a case. But being more or less qualified involves more than who has the most seniority with the employer, it can also include education, work history, scores on any tests administered by the employer, and prior performance reviews, etc. However, the timing of the action and your supervisor’s request that you avoid taking time off if you wanted the promotion may be enough to overcome this issue if you and your co-worker were equally qualified.

Your employer’s actions may also be a form of FMLA interference: By asking you to forego leave as a condition to receiving a promotion. Your employer interfered with your right to take leave under the law.

You may wish to consult with an attorney to explore your options. An attorney can help you bring a lawsuit, or work with you and your employer to try to reach an agreement without litigation.

Note that FMLA is not available to all employees: To be eligible, you must work at a public agency or at a private business that employs at least 50 people within a 75-mile radius of the worksite, among other requirements.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]