The Family and Medical Leave Act provides six instances when eligible employees of a covered employer may take up to 12 weeks of unpaid leave. One permitted use relates to the adoption of a child.
Employees may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed.
An eligible employee may use intermittent or reduced schedule leave after the placement of a healthy child for adoption or foster care only if the employer agrees.
In a reported case, an employee of a pharmaceutical company and his wife began the process of adopting a child from Russia. The employee submitted all required paperwork to take intermittent leave for the adoption.
Prior to and during the adoption process, the employee's relationship with his supervisors began to deteriorate. He started to receive poor evaluations. He was warned about his practice of giving away sample drugs to doctors. However, the employer's policies in this regard were unclear and not always enforced.
During one trip to Russia for the adoption, the employee took a case of sample drugs to the Russian orphanage as a gift. The employee's supervisors knew he was going to take the samples and said nothing.
However, after the trip, the employer reviewed the donation and determined that the use of the samples could be viewed as a prohibited gift in exchange for the adoption. Unfortunately, it was From Russia Without Love: The employee was fired less than three weeks after he returned from Russia with the adopted child.
The employee sued the employer, claiming that the problem with the samples was a mere pretext for the employer's real reason for the termination -- that it was in retaliation for his having exercised his FMLA rights.
A jury agreed, awarding the employee more than $1 million. The decision was sustained on appeal.
The problem for the employer was timing. The timing of a discharge plays a significant role in a jury's decision as to whether one event (exercising FMLA rights for the adoption) caused the second event (termination). In every instance, employers will have more to explain when the two events are close in time to one another, as they were in this case.
Opinions expressed solely are those of the writer. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.
