Many times, timing is everything (or nearly so).  For example, in Dighello v. Thurston Foods, Inc. (and unlike the Eleventh Circuit’s ruling in Bailey v. Oakwood Healthcare, Inc., about which we recently wrote), the trial court held that a plaintiff who was discharged shortly after suffering an asthma attack at work plausibly alleged an FMLA retaliation and interference claim. In Dighello, plaintiff worked as a router and dispatcher for a wholesale food service distributor. Her position required her to work 12.5 hour shifts without breaks.  After four years on the job, she became ill with walking pneumonia and was absent for two days.  Upon return,  she requested a reduced work schedule as an accommodation.  The employer refused, insisting that the full schedule be worked.  Shortly thereafter, plaintiff suffered a bronchial asthma attack while in the office and went to the hospital for emergency treatment. When she returned to work and was advised that she was required to work the full 12.5 hour work days. Several days later, and following her refusal to commit to the full schedule, the employee was discharged.

For purposes of the Plaintiff’s retaliation claim, the employer conceded all elements besides whether the plaintiff exercised rights protected by the FMLA.  The Court found that seeking emergency medical treatment could qualify as protected FMLA leave and thus the plaintiff sufficiently stated a retaliation claim.  As for her FMLA interference claim, the Court noted that an employer’s failure to notify an employee of her FMLA rights may constitute interference if the lack of notice causes the employee to forfeit FMLA leave. Here, the plaintiff’s allegations that her employer instructed her to work 12.5 hour shifts, even after her asthma attack, were sufficient to show that the employer’s instructions may have had a “chilling effect” or fully prevented the plaintiff from taking FMLA leave.  Thus, the court permitted the plaintiff’s FMLA interference claim to proceed with respect to her asthma condition.

Employers should be ever mindful of their duty to avoid interference with an employee’s FMLA rights. What qualifies as interference may be subject to challenge.  As this decision illustrates, even certain work related comments may discourage an employee from taking FMLA leave.