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The ruling

The court found in favor of the employer, but only because the employer had well-documented evidence of Daniel’s poor job performance as the reason for the termination.

The ruling, however, reminds employers that simply asking for or about FMLA leave is a protected activity. If employers take a negative employment action because an employee engages in a protected activity, they risk a retaliation claim. Employees are protected when they first attempt to exercise their FMLA rights, like simply putting their employer on notice of the need for leave.

Daniel asked about FMLA leave, so his FMLA protections began at that time, not when he provided an FMLA certification or other documentation supporting the need for leave, or when leave began. Firing an employee for asking, said the court, “would frustrate the aims of the FMLA,” even if the inquiring employee turns out to be ineligible.

In court, Daniel tried to argue that the employer’s real reason for firing him was his FMLA leave request, since he was fired around the same time. The employer, however, was able to demonstrate to the court that they had a completely separate reason for his termination.

The court therefore found that the employer had a legitimate reason for the firing and ruled in its favor.

Paris v. MacAllister Machinery Co., Inc., et al; Sixth Circuit Court of Appeals; No. 25-1726, May 14, 2026.

Court decisions are based on the specific facts presented and each court’s interpretation of the law. Because courts may reach different conclusions, similar situations can lead to different outcomes. Employers should avoid relying on a single case as definitive guidance and instead assess each situation carefully, considering applicable laws, and seek advice when needed.

Key to remember: Employees are protected by the FMLA when they first put employers on notice of the need for leave. Employers should have well-documented evidence if they fire employees.

Penalties remain at 2025 levels

The lack of a 2026 penalty adjustment means that the DOL’s potential labor law posting fines will remain at 2025 levels through January 14, 2027. The potential maximum posting fines are:

• $216 for each separate offense for failure to display the Family and Medical Leave Act posting
• $16,550 for each separate offense for failure to display the Occupational Safety and Health Act posting
• $26,262 for any violation of the Employee Polygraph Protection Act, including the posting requirement

Employers also face a fine of $698 for failing to display the Know Your Rights: Workplace Discrimination is Illegal posting. This posting requirement is enforced by the Equal Employment Opportunity Commission (EEOC).

While the EEOC has not yet made an announcement in the Federal Register about its 2026 penalty adjustment, it’s likely that this fine will not increase this year due to the lack of data about the inflation rate.

Several posting updates delayed

The lack of a posting penalty increase will make an impact on required posting updates in several states this year. These states update their workplace posters annually with information about increases to penalties levied under state Occupational Safety and Health Administration programs:

• Alaska
• Maryland
• Nevada
• Virginia

Because the state penalties typically mirror federal fines, and the federal penalties will not be increasing this year, it’s unlikely that these posters will be updated in 2026 with revised penalty information.

An update could occur for another reason, however. Alaska, for example, revised its Safety and Health Protection on the Job posting in February to update information about how to file a discrimination complaint.

The BLS is again tracking the inflation rate, and the annual increase as of April is 3.8 percent. If the bureau publishes annual inflation data in October 2026, it’s likely that penalties will go up in 2027.

Key to remember: Federal posting fines won’t be increasing in 2026, but they haven’t been eliminated altogether. Employers who willfully refuse to display labor law posters could still receive fines from the DOL up to the maximum levels set in 2025.

Increase likely in 2027

What the FMLA regulations say

Employers might think that the FMLA regulations say that employees don’t get FMLA leave for elective procedures. The regulations, however, make it clear that, in some situations, employees may, and that just because a procedure is elective doesn’t automatically mean it’s not FMLA-qualifying.

“Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) aren’t serious health conditions unless inpatient hospital care is required or unless complications develop.” [29 CFR 825.113(d)]

The word “unless” means that there are exceptions.

Therefore, if an employee has an overnight stay in a health care facility, whether the procedure is elective or not, it won’t matter; it’s an FMLA-qualifying serious health condition. If, for example, a perfectly healthy employee decides to donate a kidney to a sibling, the time off for the procedure and recovery from it will fall under the FMLA, as the employee will be kept overnight in the hospital — it will be an inpatient situation.

Another example would include a situation in which an employee’s procedure results in a period of incapacity for more than 3 consecutive calendar days, and any subsequent treatment that also involves:

• Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, or
• Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

Some of the more common elective procedures employers might have employees ask for time off include:

• Hysterectomy
• Liposuction
• Breast reduction/augmentation
• Joint replacement
• Facelift
• Rhinoplasty
• Cataract removal
• Tonsillectomy

Some elective procedures are designed to improve the quality of life as opposed to saving lives in emergencies.

Employers shouldn’t focus on the name of the condition or procedure, but on whether the condition meets the FMLA’s definition of a serious health condition, which is on the last page of the certification.

When employees ask for time off for what might be an FMLA-qualifying reason, employers should treat the situation as they would any FMLA leave request, including asking for a certification supporting the need for leave. It should give employers enough information to determine if the condition meets the FMLA’s definition of a serious health condition.

Key to remember: Employees could be entitled to FMLA leave for elective medical procedures, depending on all the facts involved.