The legal standard for liability for FMLA retaliation –what a plaintiff must prove — is the subject of a recent U.S. District Court decision in Gourdeau v. City of Newton.  The Court rejected the plaintiff’s FMLA retaliation claim that she only had to prove that her use of FMLA leave was a “negative factor” in the City’s decision not to hire her as a  temporary Traffic Officer Specialist.  Instead, the Court adopted the City’s standard, consistent with anti-discrimination statutes, that she would have to prove she would have been hired “but for” her use of FMLA leave.  Employers should be careful, in evaluating sick leave use as a criterion for promotion or transfer, not to deny a position because of valid use of sick leave under the FMLA.

Sick Leave