The Family and Medical Leave Act of 1993 (“FMLA”) has long served as a statutory safeguard for employees requiring time off for serious health conditions, caregiving responsibilities, or childbirth. Yet in the post-pandemic employment landscape, employers and employment law practitioners are seeing increased litigation not over the right to take leave—but over what happens when employees return.
Recent federal case law, including decisions out of the District of Arizona, show courts becoming increasingly receptive to claims of interference and retaliation under the FMLA, especially where temporal proximity or pretextual conduct is alleged. As the legal community grapples with constructive interference, overlap with ADA rights, and shifting performance management norms, understanding the evolving risks in FMLA litigation is critical for defense and plaintiff-side counsel alike.
Understanding the Legal Framework
The FMLA creates two substantive employee rights. First, an eligible employee is entitled to up to 12 weeks of unpaid, job-protected leave within a 12-month period. Second, the employee has the right to return to the same or equivalent job. To protect those rights, the FMLA makes it unlawful for an employer to interfere with an employee’s right to take medical leave and to retaliate against an employee after requesting or taking leave.
Two types of claims typically arise in the FMLA context:
- Interference claims (29 U.S.C. § 2615(a)(1)) occur when an employer interferes with, restrains, or denies the exercise of an employee’s FMLA rights, including failing to reinstate the employee to the same or equivalent position. These are treated as entitlement claims, which do not require proof of employer intent, and the burden is on the employer to justify denial of leave or reinstatement.
- Retaliation claims (29 U.S.C. § 2615(a)(2)) involve adverse actions taken against an employee because they exercised or attempted to exercise FMLA rights. The Ninth Circuit evaluates these claims under the McDonnell Douglas burden-shifting framework using the "motivating-factor" standard. That is, the employee must show they engaged in protected activity, suffered an adverse employment action, and there's a causal link between the two. The burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for the action. If that happens, the employee must show that the stated reason was pretext and that their FMLA-protected activity was one of the reasons for the adverse action, rather than the sole or "but-for" cause.
Recent Litigation Trends in Arizona
Here are some key trends to watch out for:
- Temporal Proximity and Pretext. Courts often deny summary judgment when a termination occurs within weeks of an employee’s return from FMLA leave. For example, where no negative reviews or performance concerns existed before the leave, proximity may support an inference of retaliatory motive. However, in two recent 2024 cases, the Ninth Circuit declined to give as much weight to the “proximity” factor as it has previously, and instead determined that evidence of temporal proximity alone is not enough to establish pretext; rather, the inquiry is fact-specific and depends on both the degree of proximity and other evidence that supports the inference of pretext.
- Hostile Return Conditions. Employers who modify job duties, reduce hours, or isolate returning employees also may face interference claims. Constructive discharge theories are also gaining traction, particularly when employees resign after punitive or unsupportive treatment post-leave.
- Overlap with ADA Accommodations. Employees frequently seek accommodations after exhausting FMLA leave. Because the ADA may require additional accommodations, employers must navigate dual compliance with both statutes. The refusal to engage in the interactive process under the ADA may compound FMLA claims.
- Remote Work and Performance Reviews. Disputes often arise when return-to-office requirements are applied inconsistently or used as a “cover” for adverse action. Subjective performance reviews issued contemporaneously with or shortly after leave may be viewed skeptically by courts.
Risk Management Strategies for Employers
Legal counsel advising employers should emphasize the following practices:
- Document Performance Consistently. Keep detailed records of leave requests and certifications, communications with employees about leave, and the reasons for any adverse employment action. Where possible, ensure performance issues are contemporaneously recorded and predate FMLA leave.
- Train Managers on FMLA Rights and Triggers. Managers should be trained to identify FMLA triggers (even if the employee doesn't explicitly use the term "FMLA”), understand reinstatement rights, and maintain neutrality in post-leave treatment to avoid comments or conduct that can be viewed as discouraging or punishing.
- Use Reentry Plans Strategically. Implement clear return-to-work policies, including consistent treatment, written expectations, and ADA coordination, if applicable. For example, fitness-for-duty certifications must be uniformly applied, limited to the job-related functions identified in advance, and cannot unnecessarily delay reinstatement.
- Perform Legal Review Before Adverse Action. Review all documentation and flag any pending or recent FMLA use (or other protected forms of leave) before issuing discipline or initiating termination.
- Audit Leave Policies. Ensure employee handbooks and internal policies clearly outline FMLA rights, prohibit retaliation, and address the intersection with ADA and state laws. Review attendance policies to ensure FMLA, ADA, and other protected absences (such as use of earned paid sick time) don't lead to automatic discipline.
Conclusion
As Arizona’s employment law landscape evolves, interference and retaliation under the FMLA represent a growing area of risk and litigation. For attorneys representing employers, early issue spotting, proper documentation, and robust post-leave protocols are critical to limiting liability. For plaintiff’s counsel, these same factors present opportunities to challenge inconsistencies and highlight unlawful motivations.
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About the Author
Haley Harrigan represents and counsels individuals, small businesses, franchised operations, and large companies on a wide range of employment issues, ranging from internal compliance to wage-and-hour litigation. She serves as chair of the firm’s employment and labor law department.