Family and Medical Leave Act (FMLA) still has a “motivating factors” test and not a “but for” test.
If you are off on FMLA leave your employer cannot retaliate against for taking or requesting FMLA. While many types of retaliation require you to prove that “but for” you taking certain action (ex: requesting not to be sexually harassed) you would not have been fired or disciplined. Recently a Federal District Judge was asked […]