Jury should decide whether or not assistant’s firing coated up go away discrimination

Diving letter:

• A jury must decide whether an executive assistant has been fired because she has informed her employer about her future medical leave needs or because her performance is deteriorating, ruled the 11th US Court of Appeals (Munoz v Selig Enterprises, Inc. No. 18-14606 (11th Cir. December 4th 2020)).
• The employee, who had “a chronic health condition that led to flare-ups,” told her manager that she would need an unpredictable family and Medical Leave Act (FMLA) vacation. Five days later, one of her bosses downloaded surveillance software onto her computer. Three weeks after starting treatment, her bosses issued a memo in which she was disciplined for poor attendance and being late, which she believed was related to her illness. She declined to be punished and was fired soon after due to performance issues. Such a point in time provides evidence of the pretext that 11th Electric Circuit believed to overturn a lower court’s summary judgment in favor of the employer.
• The court also ruled that a jury should consider whether Munoz had engaged in protected behavior under the FMLA when she “refused to sign a performance memorandum”. Judge Julie Carnes disagreed, pointing out that the court defied the precedent by asking a jury whether it considered Munoz’s belief that their behavior was objectively appropriate.

Dive Insight:

The FMLA provides eligible employees with unpaid, sheltered vacation leave that they can use when they are unable to work due to a critical health condition or when they need to care for a family member with a critical health condition. While the law protects employees who need to take time off – say six weeks to recover from surgery – – It also protects those who have to leave more frequently and in smaller proportions, such as for example, to deal with migraine headaches. The latter type of vacation is called intermittent vacation, which is often intended for people with chronic illnesses.

A temporary vacation confuses employers, Littler Mendelson shareholder Jeff Nowak previously said HR Dive. “Managing temporary leave is perhaps the biggest problem for employers,” Nowak said.

The episodic, unplanned nature of temporary leave enables abuse and abuse, Nowak said; “It is difficult to determine on a daily basis whether employees actually have an illness.” Employers sometimes have to make difficult decisions that can be complicated by a lack of staff.