Blog Post


Supervisor who complains that employee’s FMLA leave is being used as a “vacation” is liable for illegal retaliation

In a recent case before the Massachusetts Supreme Judicial Court, a nurse took FMLA to deal with stress and anxiety. Her doctor encouraged her to take a short trip to take her mind off her stress. The nurse called her supervisor from New York City a week before her FMLA leave was scheduled to expire. The supervisor said, “What? You’re on FMLA leave and your in New York City vacationing?” The nurse replied that her doctor had cleared her to return to work with a splint and a five pound weight lifting restriction. The evidence showed that her job did not require lifting more than five pounds.

Nevertheless, the supervisor said she could not accommodate the nurses’s medical restrictions and placed her on inactive status.  The SJC affirmed a jury’s finding that the decision to not reinstate the employee was in retaliation for her exercise of her FMLA rights.  The evidence of retaliation centered on the fact that the supervisor had hired a replacement nurse before the plaintiff’s FMLA leave had officially expired.  Additionally, the replacement nurse was not trained to perform the essential functions of the plaintiff’s job.  The replacement would not have been fully trained for two more months, long after the plaintiff was ready to return to work.

Communications with employees on FMLA should be limited to whatever is necessary to determine the employee’s medical progress and expected return to work.  Negative comments about FMLA use support a claim for illegal retaliation.

The case is reported as Esler v. Sylvia-Reardon.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


Blog Archives