Plaintiffs suing their employers under the Family and Medical Leave Act ("FMLA") may recover lost wages, but they may not recover emotional distress damages.  What if an employee misses work because of emotional distress that is caused by a wrongful denial of FMLA leave?  The Ninth Circuit Court of Appeals recently ruled that such damages are a form of lost wages and therefore may be recovered under FMLA. 

In Farrell v. Tri-Met, the plaintiff alleged he asked for time off due to a variety of health issues, and the employer denied his requests.  The plaintiff then alleged that he suffered from anxiety, depression and an adjustment disorder because of the unlawful denial of leave.  An Oregon federal jury agreed, awarding plaintiff $1,110 for wages he lost due to work he missed due to the emotional distress.

The employer appealed, arguing that the jury’s award amounted to an impermissible "back door" recovery of emotional distress damages under FMLA.  The Ninth Circuit disagreed, holding that because FMLA allows for the recovery of "any wages … lost … by reason of the violation," plaintiff may recover wages lost due to emotional distress, even if he could not recover directly for the emotional injuries .

We expect to see more types of "emotional distress" claims like these in the future.  While this might not qualify as a landmark ruling, be assured that plaintiff’s attorneys will be following it closely and will likely be adding claims for lost wages due to emotional distress.