The timeline I see most often goes like this: an employee requests FMLA leave for a serious health condition — their own or a family member’s. Their employer grants the leave, sometimes reluctantly. The employee takes it, returns to work, and within days or weeks they’re terminated, demoted, or written up for something minor that would normally be overlooked.

If that pattern matches yours, we should talk. FMLA retaliation is one of the most winnable employment cases in Michigan — when the timeline is tight and you have the right evidence.

I’m Warren Astbury. I’m a Harvard Law graduate (2009) with 15 years of experience and 50+ trials to verdict. I represent Michigan employees — only employees, never employers — in FMLA retaliation and interference cases.

Schedule a Free Case Evaluation → Or call 814-821-1140

Start here: the three-question FMLA retaliation intake filter

Before you call, check whether your situation hits these three points. If it does, the case is worth evaluating seriously.

1. You requested or took FMLA leave — for your own serious health condition, a family member’s serious health condition, pregnancy, a new child (birth, adoption, or foster placement), or a qualifying exigency related to a spouse’s, child’s, or parent’s active-duty military service.

2. You were fired, demoted, disciplined, or forced to resign — within a close time window after the protected FMLA activity. The tighter the window between the FMLA request/leave and the adverse action, the stronger the case. I’ve seen gaps as short as 48 hours and as long as two months support a winning claim.

3. You have evidence beyond your belief. Documents, emails, text messages, witnesses, or a timeline that shows what happened and when. Not a hunch. Not a feeling. Something a jury can see.

If you hit all three, call 814-821-1140 or request a free case evaluation →.

What the FMLA actually does

The Family and Medical Leave Act is a federal law that requires covered employers to let eligible employees take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specific family and medical reasons. The leave can be continuous, or — depending on the circumstances — intermittent or on a reduced schedule.

Qualifying reasons for FMLA leave

The birth of a child, and bonding time with the newborn
The placement of a child with you for adoption or foster care, and bonding time
Care for an immediate family member (spouse, child, or parent — not a parent-in-law) with a serious health condition
Your own serious health condition that makes you unable to work
Qualifying exigencies arising from your spouse, child, or parent being on covered active duty or called to active duty as a member of the National Guard, Reserves, or Regular Armed Forces

The FMLA also provides military caregiver leave (up to 26 weeks) for eligible employees caring for a covered servicemember with a serious injury or illness.

What counts as a “serious health condition”?

This is where a lot of cases hinge. Under the FMLA, a “serious health condition” is any of the following:

A condition requiring an overnight stay in a hospital, hospice, or residential medical-care facility
A condition that incapacitates the employee (or family member) for more than three consecutive days and involves ongoing medical treatment (either multiple appointments with a healthcare provider or a single appointment plus follow-up care like prescription medication)
A chronic condition that causes occasional periods of incapacity and requires treatment by a healthcare provider at least twice a year
Pregnancy — including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest

Mental health conditions can qualify. A mental health condition is a “serious health condition” if it requires inpatient care or continuing treatment by a healthcare provider, such as continuing treatment by a clinical psychologist or an overnight stay in a treatment center. Roughly one in five U.S. adults lives with a mental illness, and the law does not treat mental health less seriously than physical health.

Who is a “covered employer”?

The FMLA applies to:

All public agencies — local, state, and federal employers, including public schools — regardless of size
All private-sector employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year

Who is an “eligible employee”?

To be eligible for FMLA leave, you generally must:

Work for a covered employer
Have worked for that employer for at least 12 months (the 12 months don’t need to be consecutive)
Have worked at least 1,250 hours during the 12 months immediately before the leave starts
Work at a location where the employer has 50 or more employees within a 75-mile radius

If you don’t meet all four, you may still have state-law or other federal-law protections. We’ll talk through it in the consultation.

FMLA interference vs. FMLA retaliation — two different claims

FMLA cases generally break into two types, and the difference matters.

FMLA interference is when an employer interferes with, restrains, or denies your right to take FMLA leave in the first place. Examples: refusing a valid leave request, miscounting your eligibility, discouraging you from using leave, demanding excessive certification paperwork, or miscategorizing your absences as unexcused.

FMLA retaliation is when an employer takes adverse action because you exercised your FMLA rights. Examples: firing you after you request leave, firing you when you return from leave, demoting you, cutting your hours, denying a promotion you’d earned, or making your job so miserable you’re forced to quit (constructive discharge).

Many cases have both claims. You can sue on both.

The 10-point FMLA retaliation evidence checklist

When I evaluate an FMLA retaliation case, here’s what I’m looking for. The more boxes you can check, the stronger the case.

The FMLA request was in writing — email, the employer’s leave-request form, the employer’s HR portal, or a letter. Verbal requests work legally, but written requests are dramatically easier to prove.
You meet the four eligibility criteria — covered employer, 12 months of service, 1,250 hours, 50 employees within 75 miles.
A healthcare provider supported the leave — the employer typically requires certification; keep your copy and any correspondence about it.
The medical condition is documented — appointment notes, prescriptions, hospital discharge papers, or a family member’s medical records (if they’re the basis for the leave).
The adverse action happened close in time to the FMLA activity — within days, weeks, or at most a few months. The Sixth Circuit (which covers Michigan) has treated two months as close enough in many cases.
The stated reason for termination is weak or shifting — your employer’s written rationale contradicts itself, contradicts past performance reviews, or is suddenly applied to you but not to coworkers.
Comparator evidence — other employees who didn’t take FMLA leave engaged in similar or worse conduct and were not fired.
Statements from supervisors or HR — anything said to you, in emails, Slack, or otherwise, that shows awareness of your FMLA leave or frustration with it.
Performance history — if your reviews before the FMLA request were good, and performance allegations only started afterward, that’s powerful.
Witnesses — coworkers who saw the before-and-after shift in how you were treated, or who heard supervisors complain about your leave.

You don’t need all ten. Most winning cases have four to seven. But the more documentation you preserve — starting immediately — the stronger your case.

The causation timeline: why the gap between FMLA and termination matters

Federal courts rarely see employers openly admit they fired someone for taking FMLA leave. We prove retaliation circumstantially, and the single most important piece of circumstantial evidence is time.

The shorter the gap between the protected FMLA activity and the adverse action, the stronger the inference of causation.

1-2 weeks: Extremely compelling. Courts often find this close enough to survive summary judgment on timing alone.
3-8 weeks: Still strong, particularly with corroborating evidence.
2-6 months: Possible, but needs more supporting evidence — a shifting rationale, comparator evidence, or direct statements.
More than 6 months: Very difficult without strong direct evidence.

This is why I ask about the exact timeline in the first 60 seconds of a consultation. The dates tell me a lot about whether there’s a case.

Damages: what you can recover in a winning FMLA case

If you win an FMLA lawsuit, a judge or jury can award:

Back pay — lost wages and benefits from the date of termination through the end of trial
Front pay — future lost wages and benefits after trial, if reinstatement isn’t feasible
Liquidated damages — an amount equal to your lost wages, on top of the lost wages themselves, if the employer’s violation was willful (effectively doubling your lost-wages recovery)
Attorney’s fees and costs — paid by the employer if you prevail

Two categories of damages are not available under the federal FMLA: emotional distress damages and punitive damages. If your case includes claims under Michigan state law or other federal laws (the ADA, for example), those damages may be available under those laws. Often we plead multiple claims for exactly this reason.

For an in-depth breakdown of how back pay, front pay, and compensatory damages are calculated, see the Wrongful Termination hub →.

Representative FMLA case patterns

Past results do not guarantee future outcomes. Every case is different. The following are representative fact patterns from cases I’ve handled.

Won a four-day federal jury trial involving a woman terminated when she returned from maternity leave.
Won a federal judgment for an employee fired after requesting additional leave for a serious medical condition.
Large settlement against a hospital for terminating an employee who missed work while receiving cancer treatment — a classic FMLA-plus-ADA fact pattern.
Multiple settlements in cases involving violations of the FMLA and state-specific leave laws.

See more representative case frameworks on the Results page →.

Frequently asked questions

Is my employer allowed to interfere with my FMLA leave or retaliate against me for taking it?

No. Federal law explicitly prohibits employers from interfering with, restraining, or denying the exercise of any FMLA right — and from discriminating or retaliating against anyone who has exercised or attempted to exercise an FMLA right. That includes making your job harder, writing you up, demoting you, or firing you because you requested or took leave.

I asked for FMLA leave verbally. Does that count?

Yes — verbal requests are legally sufficient to put your employer on notice. But written requests (email, HR portal, letter) are much easier to prove later. If you think you may need FMLA leave, follow up any verbal conversation with an email confirming what you asked for.

My employer demanded a doctor’s certification. Can they do that?

Yes, for leave based on a serious health condition. The employer must give you at least 15 calendar days to obtain the certification. The standard form is the U.S. Department of Labor model certification. If the employer is demanding certifications that go beyond what the law allows, or is using the certification process to harass or delay, that may itself be interference.

I don’t qualify for FMLA — my employer has fewer than 50 employees. Do I have any options?

Possibly. You may still have protections under the Americans with Disabilities Act (ADA), Michigan’s Elliott-Larsen Civil Rights Act, the Pregnancy Discrimination Act, or state common law. We can work through your specific situation in a consultation.

I was fired while I was still on FMLA leave. Can my employer do that?

Employers can sometimes terminate employees on FMLA leave — but only for reasons unrelated to the leave itself. For example, if a planned layoff was in progress before the leave request, an employee on FMLA leave isn’t protected from that layoff. The key question is always why you were fired. If the real reason was the leave (or the underlying medical condition), it’s unlawful regardless of when the termination happened.

How long do I have to file an FMLA lawsuit?

The statute of limitations is generally two years from the violation, or three years if the violation was willful. Don’t wait. Evidence disappears, witnesses become hard to reach, and employers start telling themselves the story that becomes their trial defense. The sooner we evaluate the case, the better.

Ready to talk?

If you requested or took FMLA leave and were fired, demoted, or retaliated against afterward, I want to hear about it. The consultation is free and takes 15-30 minutes by phone or video.

Schedule a Free Case Evaluation →

Or call 814-821-1140 directly.

Astbury Law, PLLC 607 Shelby Street, 7th Floor, #1115 Detroit, MI 48226 814-821-1140 · warren@astburylaw.com

Past results do not guarantee future outcomes. The information on this page is for general educational purposes and is not legal advice. No attorney-client relationship is created by reading this page or submitting a form.