June 24, 2026
Past Practice Supports Finding Employer Did Not Engage in FMLA Retaliation
An employer requires employees to report FMLA-covered absences to their supervisor and to a third-party administrator (TPA). An employee follows that policy, notifies both, and submits an FMLA medical certification form to the TPA supporting time off due to a back condition. The TPA requested a second opinion. Why? The TPA was familiar with the chiropractor who had “submitted FMLA certifications for employees with unusual frequency and often opined outside of his specialty.”
When the second opinion disagreed with the first, the TPA requested a third opinion, in accordance with the FMLA regulations. After the employee declined to submit to a third exam paid for by the employer, the TPA relied on the second opinion and denied his request for FMLA leave. Thereafter, the employee continued to call out but only to his supervisor, claiming FMLA-covered absences, and did not report his absences to the TPA. As a result, he was fired for FMLA falsification. He then sued the employer and the union for various forms of discrimination (based on transgender status), retaliation, and FMLA interference. The lower court disagreed on all counts, dismissed his claims, and on appeal, the 7th U.S. Circuit Court of Appeals upheld the ruling.
The court noted the following in support of its decision that the employer did not violate the law, engage in any unlawful discrimination, or retaliation.
- The court noted the TPA’s request for the second opinion was “[c]onsistent with its general practice when it received certifications from that chiropractor, [the TPA] requested…a second medical opinion.”
- Before firing the employee, the employer asked why he failed to report his absences to the TPA as he had in the past. The employee, who was represented by a union, provided no explanation.
- His failure to follow the call-in procedure was not infrequent, it occurred 24 times.
- Around the same time, the employer fired four other employees for FMLA falsification none of whom were transgender. subsequent absences…and more.
Lessons learned? Unlike the previous article, past practice saved the day. We expect employees to follow our policies and procedures. Ensure we do the same. Hold employees accountable. When you do, you demonstrate not only the value and purpose of the rule but lay the groundwork for defending future actions.
