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Home > FMLA > Posted on November 18, 2013 by Maria Danaher

Termination of employee for entering alcohol rehab after a last chance agreement not necessarily a violation of the ADA.
One of the questions asked most often by employers relates to whether the enforcement of a last chance agreement with an employee who is recovering from drug or alcohol addiction is a per se violation of the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). The 3d U.S. Circuit Court of Appeals recently answered that question in the negative. Ostrowski v. Con-way Freight, Inc., 3d Cir., No. 12-3899, unpubld, 10/30/13. Thomas Ostrowski worked as a Driver Sales Representative (DSR) for Con-way Freight, a trucking company subject to federal motor carrier safety regulations. Con-way has in place strict drug and alcohol screening programs and prohibitions, and has an Employee Assistance Program for its employees. In May 2009, Ostrowski requested a leave of absence under the FMLA to enter a rehabilitation program for the treatment of alcoholism. Ostrowski engaged in and completed the program, and returned to work without change to his wages, hours, or working conditions. However, Ostrowski was required by Con-way to sign a Return to Work Agreement (RWA) in which he agreed to remain free of drugs and alcohol (on company time as well as off company time) for the duration of [his] employment. Within a month after agreeing to the RWA, Ostrowski relapsed, and on October 15, 2009, once again entered into a rehabilitation program for the treatment of alcohol abuse. On November 3, 2009, Ostrowskis employment was terminated by Con-way because Ostrowski had consumed alcohol in violation of the RWA. Ostrowski filed a lawsuit against Con-way, alleging disability discrimination and violation of the FMLA. The lower court granted summary judgment in favor of Con-way on all claims. Although the Third Circuit upheld the lower courts decision, it pointed out that Ostrowskis deposition testimony and record of treatment for alcoholism was sufficient to create a factual dispute precluding summary judgment on the issue of whether Ostrowski was disabled. In other words, Ostrowskis case could not be dismissed for a failure to prove that he was disabled that fact could be a question for the jury. However, the Court went on to say that Ostrowski failed to submit any evidence to show that Con-way used his violation of the RWA as a pretext for discrimination. As other courts also have recognized, employers do not violate the ADA merely by entering into returnto-work agreements that impose employment conditions different from those of other employees. According to the Court, although Ostrowski was subject to different standards than other company employees who did not sign RWAs, the difference was a result of his agreement, rather than of disability discrimination. The Court also made a distinction between any alleged disability (alcoholism) and Ostrowskis prohibited

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conduct (consuming alcohol). The agreement signed by Ostrowski did not keep him from working at Con-way, but simply precluded him from drinking alcohol while employed there. Therefore, according to the Court, firing him for violating that agreement did not violate the ADA. Ostrowskis FMLA claims similarly failed. Although Ostrowski alleged that he was fired for seeking FMLA leave, he was unable to prove that he would not have been fired had he not requested the leave. While this is an issue of real importance and concern to employers, this case may not provide the panacea for which employers hope. This case may have turned - at least in part on Con-ways obligation under the Department of Transportation Regulations to maintain strict alcohol policies for its employees and if so, the case may have been decided differently for an employer in another industry. Further, the Courts distinction between Ostrowskis conduct (drinking) and his disability (alcohol abuse) is one that employers may have some difficulty understanding and implementing consistently. Therefore, before disciplining or terminating an individual who is on a last chance agreement, employers should carefully review the factual background of the situation, and seek input from the companys human resources and/or legal department. Tags: ADA, EAP, FMLA, Return to Work Agreement, alcoholism, last chance agreement

Posted on October 20, 2013 by Maria Danaher

Employee's failure to return from FMLA leave in a timely manner supports summary judgment for employer under the ADA.
In an unpublished opinion issued on October 8, 2013, the 5th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer on a claim under the Americans with Disabilities Act (ADA). The interesting and somewhat unexpected basis of the decision was the fact that the plaintiff/employees termination was based upon her failure to return from a medical leave under the Family and Medical Leave Act (FMLA) in a timely manner. Owens v. Calhoun County School District, 5th Cir., No. 12-60897, October 8, 2013. Most employers are hesitant to tackle the overlap between the ADA and the FMLA, based upon the differing legal standards between the two. To support a valid FMLA claim, a plaintiff typically must show a serious health condition; for an ADA claim, the standard is showing a disability that substantially limits a major life activity. The challenge for employers is the situation in which an individual is on FMLA leave with an impairment significant enough to constitute a disability for purposes of the ADA. In those cases, the employer must review and document carefully its reasons for any decision related to the employees return from leave, including termination of employment before any need for accommodation has been discussed. Karen Darlene Mann Owens taught at Bruce Upper Elementary School, part of the Calhoun County, Mississippi School District (Calhoun County) for 17 years until her employment termination on February 9, 2010. For a number of years prior to her firing, Owens suffered from back and neck pain. On October 19, 2009, Owens underwent surgery on her neck and back, following which she took a leave of absence under the FMLA. On January 20, 2010, the school principal (Monaghan) asked Owens when she would be returning to work, to which Owens replied that she had a doctors appointment on February 12, 2010, and would have more information at that time. After that discussion, Calhoun Countys superintendent (Moore) sent a letter to Owens, warning her that her FMLA would soon expire and requesting that Owens provide a return to work date so that her employment
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status could be determined. Moore followed that letter with a phone call in which he asked Owens to provide a return to work date. Owens did not provide a date, but again stated that she had a doctors appointment on or about February 12. On February 9, 2010, Moore sent a letter to Owens terminating her employment for failing to return to work before her FMLA leave expired on February 1, and for failing to provide any return to work date. Owens unsuccessfully appealed that firing to the Calhoun County school board; she then filed a lawsuit alleging violation of the ADA, the Age Discrimination, and the FMLA, along with a state law breach of contract claim and claims under the First and Fourteenth Amendments of the U.S. Constitution (related to statements that she had made in an attempt to secure educational support for her son). After dismissal of all of her claims, and following a series of procedural issues, Owens appealed only the dismissal of her ADA claim and her First Amendment retaliation claim to the Fifth Circuit. The Fifth Circuit upheld the dismissal of Owens First Amendment claim, based on the fact that such a claim requires speech related to a matter of public concern, and Owens alleged simply that she was terminated for attempting to seek educational support for her son, a private matter. The Fifth Circuit also upheld the dismissal of Owens ADA claim on the basis that Owens failed to provide evidence that the school districts reason for her termination (failure to provide a return to work date after her FMLA leave) was a pretext for disability discrimination. To the contrary, said the Court, the record was replete with evidence that Owens was fired for reasons other than her disability, including the fact that Owens admitted that she had failed to return to work at the expiration of her FMLA leave and, more importantly, failed to provide a date on which she would return to work or any documentation that she was cleared to return to work by her doctor at any point. Ultimately, Owens was unable to present any evidence that the school districts reason for her termination was a pretext for disability discrimination. The school districts documentation of its communications to Owens informing her of the expiration of her FMLA leave and attempting to obtain from Owens a return to work date led to its success in this matter. The importance of clear, contemporaneous, and objective documentation cannot be overstated, and formed the basis of the Fifth Circuits decision in this case. Tags: ADA, FMLA, disability, pretext, return to work

Posted on August 19, 2013 by Maria Danaher

Positive performance reviews do not negate employer's ability to fire employee upon discovery of previously unknown poor performance.
According to the 4th U.S. Circuit Court of Appeals, evidence of previously unknown poor performance is sufficient basis for an employees, even if that evidence is discovered during that employees Family and Medical Leave Act (FMLA) leave.Mercer v. The Arc of Prince Georges County, Inc., 4th Cir., No. 13-1300, unpubl., July 11, 2013. Adesina Mercer held the full-time position of Finance and Benefits Coordinator for The Arc of Prince Georges County, Inc. (The Arc), a private non-profit organization, from July 2004 until her discharge in March 2011. Mercers job responsibilities included applying for and processing initial applications for benefits for [clients] under the Food Stamp Program and Social Security, as well as assisting with renewals and redeterminations of those benefits for those clients.

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In the spring of 2009, Mercer was on a medical leave. Co-workers who were performing Mercers responsibilities during her absence discovered that many of The Arcs food-stamp eligible clients were no longer receiving benefits. When Mercer returned from leave, she was directed to assure that the necessary paperwork was completed to assure benefits for those individuals. In October 2010, Mercer received her annual performance review, during which she was rated as satisfactory in 13 of 14 categories, and was rated above average in the remaining category. However, in November and December of that year, The Arc learned that certain food-stamp eligible clients still were not receiving benefits. Mercer again was instructed to correct the situation. In January 2011, Mercer was injured in an automobile accident and requested (and was granted) FMLA leave from January 31 until February 22. Once again, while co-workers were performing Mercers job duties, they found many more clients who no longer were receiving benefits due to Mercers failures to submit renewal or redetermination paperwork over a period of time prior to her FMLA leave. Upon Mercers return from medical leave, she was placed on administrative leave pending the completion of an investigation. At the end of the 5-day leave, Mercer took additional FMLA leave until March 14, 2011. During the investigation, it was determined that Mercer had failed to obtain and maintain benefits for 99 of 160 eligible clients of The Arc. On March 23, Mercer was notified, by letter, that her employment was terminated. Mercer filed a complaint in federal district court in Maryland, alleging that her discharge constituted unlawful interference with her rights under the FMLA and retaliation for her exercise of those rights. The district court granted The Arcs motion for summary judgment on both claims, holding that because Mercer would not have been able to keep her job even had she not taken FMLA leave, she was unable to show that The Arc interfered with her FMLA rights. It further held that Mercer failed to establish that The Arcs explanation for her discharge was a pretext for FMLA retaliation. On appeal, the Fourth Circuit upheld the lower courts dismissal of the matter, pointing out that in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the U.S. Supreme Court held that the FMLA does not require an employee to be restored to a prior job after FMLA if that employee would have been discharged had he or she not taken leave. While the full extent of Mercers poor performance may not have been known to The Arc prior to January 2011, her leave permitted the employer to discover the depth of the problems that led to her firing. Mercer therefore could not prevail on her FMLA claim, as her discharge indisputably was based on her performance problems. In analyzing this case, the Court made a specific finding that is of importance to employers: the fact that Mercer had received satisfactory performance reviews did not negate The Arcs ability to terminate her employment upon the discovery of previously unknown poor performance, even though that evidence came to light during Mercers FMLA leave. However, it also is important to note that there was specific and objective documentation of Mercers errors, and that the errors were discovered by individuals outside of the termination decision-making process. Had the poor performance been simply a subjective assessment of Mercers skills, had the individual responsible for her termination been the person to have undertaken an investigation or review of Mercers past performance, or had there been a lack of objective documentation of Mercers performance deficiencies, the Courts analysis and ultimate decision may have been different. Tags: FMLA, interference, poor performance, retaliation

Posted on March 11, 2013 by Maria Danaher

Facebook postings showing misuse of FMLA leave can form sufficient legal basis for
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termination.
Based on the number of Facebook decisions from the National Labor Relations Board over the past two years, most employers understand that when employee Facebook postings constitute protected activity under the National Labor Relations Act, the postings can be legally protected. However, the NLRA is not the only federal law that can be implicated in Facebook-related firings. A federal district court in Michigan recently held that a hospital that fired an employee while she was on medical leave did not violate the Family and Medical Leave Act (FMLA), because the employee had posted - on her Facebook page - photos and text about vacation activities that were inconsistent with her medical restrictions, and then lied about those activities. Lineberry v. Richards, E.D.Mich., No. 2:11-13752, February 5, 2011. The FMLA prohibits employers from discriminating against or retaliating against employees for taking FMLA leave, and provides that an employee returning from such leave shall be reinstated to his or her employment position or an equivalent position. However, the regulations associated with the FMLA establish that interference with an employees rights does not constitute a violation of the FMLA if there existed a legitimate business reason unrelated to the exercise of FMLA rights for the employers action. Therefore, an employer can avoid FMLA liability by showing that it would have taken the adverse action even absent the employees leave under that Act. Carol Lineberry had been employed by the Detroit Medical Center (DMC) as a Registered Nurse for over a year when she injured her back in a work-related incident in January 2011. After Lineberrys physician ordered her not to return to work, Lineberry requested and was granted FMLA leave from January 27 through April 27, 2011, as well as over $3,000 in short-term disability (STD) benefits. During that leave, Lineberry took a pre-planned, pre-paid vacation to Mexico from February 26 to March 2, 2011. Her physician okayed the trip, stating that he believed that it would not be as physically demanding as Lineberrys performance of her work duties, which had included 12-hour work days of walking and moving patients on stretchers. While on vacation, Lineberry posted photos of herself riding in a motorboat, and holding her young grandchildren, one in each arm, as she stood. She also posted details of her days, which included baby-sitting those grandchildren and various other physical activities. Based on those postings, Lineberrys co-workers complained to Lineberrys supervisor about activities that they considered to be abuse of Lineberrys FMLA leave. The supervisor e-mailed Lineberry, after Lineberry complained that she had not received a get-well card from the staff, stating that since Lineberry was well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming that you would be well enough to come back to work after the vacation. Lineberry responded that she was in a wheelchair at the airports because she was unable to stand for more than 10 minutes at a time. Lineberrys supervisor relayed the information and the co-workers complaints to DMCs Loss Time Management Department (LTM), who then asked Lineberrys physician for additional clarification on Lineberrys restrictions. On March 30, 2011, the physician informed DMC that Lineberrys restrictions during her leave included standing for only 15-minute intervals, a lifting restriction of 5-10 pounds, and no pushing or pulling more than 20 pounds. Based on that information, and in light of a progressive discipline policy that require an investigative meeting facing termination, Lineberry was asked to attend an April 19, 2011 meeting with a number of DMC managers, including the director of security investigations. At that meeting, Lineberry initially restated her claim that she had used a wheelchair in all airports during her travel, but rescinded that statement when reminded that airports have security films that could be reviewed; she then admitted that she had lied about that fact in her e-mail to her supervisor. Lineberry also admitted to holding her grandchildren. Lineberrys employment was terminated after that meeting, based on the recommendation of DMCs Human Resources department. Lineberry filed a lawsuit against DMC and a number of individuals who were involved in the meeting and the
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termination decision, alleging interference with her FMLA leave and retaliation for taking that leave. DMC filed a counter-claim for reimbursement of the STD benefits. The district court granted the defendants motion for summary judgment on two bases. First, the court found that because Lineberry lied about using the wheelchair and admitted that lie, that point was undisputed and, therefore, DMC treated Lineberry as they would have whether or not she was on FMLA leave when it fired her for her dishonesty. Second, the court found that DMC was entitled to summary judgment under the honest belief doctrine, which states that an employer can successfully defend an FMLA lawsuit if it shows that it acted upon its honest belief - based on particularized facts - that the employee has misused an FMLA leave. Here, Lineberrys admitted dissembling about the wheelchair, and her Facebook postings about her activities, caused DMC to believe that Lineberry had abused her FMLA leave and led directly to her firing. This decision does not mean that every vacation-related Facebook posting should lead to termination, nor does it mean that those posting always will create an honest belief that an employee has abused FMLA leave. However, in this instance, the hospitals compliance with its own disciplinary policy, and its interaction with the doctor to obtain appropriate information about Lineberrys restrictions before taking adverse action against Lineberry, indicate an awareness of the FMLA and its associated regulations which provide a strong model for other employers to follow. It also is worth noting that this a district court decision that could yet be appealed to a federal appellate court. Tags: Detroit Medical Center, FMLA, Facebook case, abuse of FMLA, registered nurse

Posted on February 25, 2013 by Maria Danaher

Employer has no obligation to provide "light duty" assignment under FMLA or ADA.
The use of light duty assignments to employees who are returning to work after recuperation from an illness or injury is an often used mechanism. The 7th U.S. Circuit Court of Appeals has held that neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) creates an obligation for an employer to provide light duty work to an individual who is unable with or without accommodation to return to the essential functions of his job. James v. Hyatt Regency Chicago, 7th Cir., No. 1:09-cv-07873, February 13, 2013. Carris James began his employment with the Hyatt Regency Chicago in 1985 as a banquet steward, responsible for maintaining the cleanliness of banquet and food service areas, which included lifting pots and pans, and transporting trash containers around those areas. At that time, James informed Hyatt of his vision problem, which was correctable with eyeglasses and magnifying glasses. Hyatt accommodated James by increasing the print size of his work assignments and schedule. In March 2007, James was punched in the eye during a non-work-related incident, and developed aretinal detachment for which he underwent surgery in the following month. When Hyatts human resources department learned that James absence was related to a medical issue, it provided information to James regardingFMLA leave. On April 24, 2007, James physician, Dr. Scott, stated that James could return to light duty on May 10, but did not say for how long James would require that light duty assignment. On April 25, James requested FMLA leave, which was applied retroactively to include James prior absences. On May 9, 2007, James provided to Hyatt additional paperwork that indicated that James was unable to work in any capacity. James subsequently received disability benefits based upon that information. In addition, on May 11, James submitted a medical certification to Hyatt stating that his condition could possibly lead to

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permanent incapacity. James 12 weeks of FMLA ended on July 13, 2007, but the collective bargaining agreement between the union and Hyatt provided job-protected leave for up to one year from his original absence. In August, James submitted various paperwork to Hyatt, including one release that stated that he could return to work although visually impaired, and others in which Dr. Scott continued to represent that James was incapable of working in any capacity. On September 25, James faxed a note to Hyatt from yet another doctor who stated that James could return to work with lifting and bending restrictions, which would have precluded James from returning to the steward position. Following that, Hyatt attempted to contact James seeking additional information, but no clarification was provided until January 2008, when Hyatts Workers Compensation and Safety Manager sent a letter directly to Dr. Scott, enclosing a return to work certification form, as well as a job analysis for the banquet steward position. Dr. Scott responded, stating that James could return to work, but could not complete any task that required better than 20/200 vision. Hyatt then met with James and scheduled a return to work in the same position, shift, and seniority level as before James medical leave. In 2009, James filed a lawsuit, claiming that Hyatt had interfered with his FMLA leave and had discriminated against him under the ADA by failing to allow him to return to work on light duty in May 2007. The lower courts decision to grant summary judgment in favor of Hyatt on both claims was upheld by the Seventh Circuit on appeal. First, the Court quoted the language of the FMLA and stated that if an employee cannot perform an essential function of [his] original position because of a physical or mental condition, the employee has no right to restoration to a different position under the FMLA. While the FMLA requires an employer to restore an employee to the position held at the time the FMLA leave began, or to an equivalent position, that law does not require an employer to restore an employee to a light duty (which clearly is not an equivalent) position simply to allow him or her to return prior to the expiration of the leave time allowed. Next, the Court addressed James ADA claim that Hyatt had failed to accommodate him by pointing out that Hyatt had accommodated James visual impairment throughout James employment, beginning in 1985. It also pointed out that the conditional and, at times, contradictory releases being provided by James, along with the application for disability benefits which stated that James was unable to work in any capacity, did not provide information to Hyatt sufficient for the company to understand the true nature of James condition, or to formulate or implement a reasonable accommodation. This case provides a road map to employers faced with the increasingly frequent situation in which there are both FMLA and ADA issues. First, once the company learned that James absence was medically related, it provided FMLA paperwork. During James leave, Hyatt requested medical updates in an attempt to understand if and when James could return to work, and to determine the extent of his medical impairment. When those updates were not forthcoming, and rather than make assumptions based on contradictory reports, Hyatt requested - directly from the medical provider - clarification of James medical condition, and included returnto-work certification forms as well as a detailed job description to allow the doctor to determine whether James could return to his position with or without accommodation under the ADA. It was the companys action that ultimately led to James return to his position, and the companys considered and persistent attention to the issues that led to a successful result in this case. Tags: ADA, FMLA, Reasonable accommodation, light duty, retinal detachment

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Posted on December 17, 2012 by Maria Danaher

Assignment to a lesser position upon return from leave may support FMLA interference claim.
The 11th U.S. Circuit Court of Appeals reversed summary judgment in favor of an employer, holding that a plaintiffs testimony and evidence related to her transfer to a position of less responsibility upon return from Family and Medical Leave Act (FMLA) leave created an issue of material fact that required a jury to determine whether the employer had interfered with the employees FMLA leave. Rodriguez v. University of Miami Hospital, 11th Cir., No. 11-15206, December 3, 2012. Iliana Rodriguez requested and was granted FMLA leave from her administrative position at the University of Miami Hospital. Upon her return from leave, Rodriguez met with a number of individuals, including her supervisor, Francetta Allen, and the Hospitals Executive Director of Human Resources, Errol Douglas. At that meeting, it was determined that Rodriguez would be transferred to a temporary position, based on her admitted inability to get along with Allen. While the temporary position was at the same level of pay and benefits, the new position had significantly less responsibility and, in fact, consisted largely of copying documents. Six weeks after being transferred to that position, Rodriguez was fired. She then filed a lawsuit, alleging that the Hospital interfered with her right to reinstatement under the FMLA by failing to return her to her original position, and then fired her in retaliation for taking such leave. The district court granted summary judgment in favor of the Hospital on both claims. In an unpublished opinion, the Eleventh Circuit upheld the summary judgment on Rodriguezs retaliation claim, holding that there no evidence that the Hospitals reasons for the termination that Rodriguez could not get along with her supervisor, and was unable to find another acceptable job within the Hospital were false. Rodriguez therefore could not show a causal nexus between her FMLA leave and her firing, and her retaliation claim was dismissed. However, an FMLA interference claim is analyzed differently than a retaliation claim. According to the Eleventh Circuit, if an employee is not reinstated to the same or an equivalent position, the employer bears the ultimate burden of proving that its action was taken for independent reasons that were unrelated to the employees leave. Therefore, in this case, the Court had to determine whether there was any genuine issue of material fact regarding the Hospitals defense that it had transferred Rodriguez to the temporary, lesser position for reasons unrelated to Rodriguezs FMLA leave. An employer is not liable for failing to reinstate an employee to her former position if the employer can show that the employee cannot perform the essential functions of her original position. Further, in that instance, an employer is not obligated or required to restore the employee to any other position. In this case, the Hospital argued that it transferred Rodriguez upon her return from leave because she was unable to perform the essential functions of her original position, which included being able to get along with her supervisor, Francetta Allen. Had the record unquestionably established that Rodriguez and Allen could not work together, the Hospital would have met its burden that the transfer was wholly unrelated to Rodriguezs FMLA leave, and the interference claim could have been dismissed. However, based on deposition testimony and a lack of documentary evidence that Rodriguez and Allen had been unable to get along prior to the FMLA leave, the Court was able to find disputed issues of material fact that precluded summary judgment in favor of the Hospital. Contrary to the Hospitals assertion that Rodriguez was unable and unwilling to work with Allen, Rodriguez testified that she had asked for the meeting with Allen and Douglas upon her return from leave in order to address whatever issue was there and to move on, as she did not want to lose her job. In addition, in spite of the Hospitals statement that Rodriguezs issues with Allen pre-dated her return from FMLA leave, there was no documentary evidence of any performance deficiencies or difficulties between Rodriguez and Allen until the meeting held at the time of Rodriguezs return. Indeed, Allen first documented her issues with Rodriguez in an e-mail sent to Douglas one hour before that meeting. Because there are disputed issues of material fact underlying the Hospitals defenses against Rodriguezs interference claim, the Court determined that it is for a jury to decide whether those defenses constitute an honest explanation of the reason that Rodriguez was not returned to her position upon returning from FMLA leave. The Court remanded the case to the district court for further action on that issue.

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This case is another in a series of recent federal court cases in which a court points out an important difference between the analysis of an FMLA retaliation claim and an FMLA interference claim for purposes of summary judgment. In a retaliation claim, the ultimate burden of proof is on the employee under the oft-cited McDonnell-Douglas 3-step shifting burden analysis - to show that an employers reason for its action is simply a pretext for retaliation. However, in an interference claim, the ultimate burden is on the employer to prove its defense that its action was based on independent reasons that were unrelated to the employees FMLA leave, and to prove it without any question of material fact. In this case, the Hospital was unable to carry that burden, and the matter will be returned to the lower court in order to allow a jury to decide the issue.

Tags: FMLA, burden of proof, interference, retaliation, summary judgment

Posted on December 3, 2012 by Maria Danaher

Temporal proximity between FMLA leave and firing does not always lead to successful legal claim.
The Family and Medical Leave Act (FMLA) continues to create administrative challenges for employers. One particular issue of concern is the discipline and or termination of an employee who has requested or is on FMLA leave. The 10th U.S. Circuit Court of Appeals recently upheld the dismissal of an individuals interference and retaliation claims in an unpublished opinion that serves as an outline for analyzing FMLA claims under such circumstances. Brown v. ScriptPro, LLC, 10th Cir, No. 11-3293, November 27, 2012. Frank Brown worked as a Customer Service Operations analyst for ScriptPro, a company which develops, manufactures, markets, and sells automated prescription drug dispensing systems and related software. Brown began that employment in March 2007. In mid-2008, Browns immediate supervisor prepared a written performance review which included both positive and negative comments. Among the negative feedback were observations related to Browns interaction with co-workers and customers, including his tendency to be argumentative and abrasive, and his lack of respect for personal boundaries. Although these issues were discussed with Brown, no specific goals or corrective plans were put in place. Following that performance review, several other issues developed, including complaints by Browns co-workers about his belligerence toward customers and his failure to complete a work project. At the end of October in 2008, Brown was out of the office, ostensibly on Paid Time Off (PTO) for two weeks. However, upon his return, he asserted that he had worked from home during the second week, and on November 19, requested to use some of that work time to leave early on the following day to take his wife to a medical appointment. When Browns supervisor informed him that his request was denied, Brown raised his voice and allegedly banged his first on the table. He later apologized for his conduct. On November 21, 2008, ScriptPro terminated Browns employment for performance issues. Brown filed a lawsuit claiming, among other things, that ScriptPro interfered with the exercise of his rights under the FMLA, and terminated his employment in retaliation for his exercise of those rights. The district court dismissed Browns claims, granting summary judgment to ScriptPro. The Tenth Circuit upheld that decision. In its analysis of Browns interference claim, the Tenth Circuit makes a number of noteworthy points. First, it sets forth the elements of a successful interference claim, in which an employee must show that he was entitled to FMLA leave, that an adverse action taken by the employer interfered with right to take FMLA leave, and that the adverse action was related to the attempted exercise of those rights. Second, the Tenth Circuit reminds employers that the deprivation of FMLA rights is a violation of that law, regardless of the employers intent and that, therefore, the oft-cited McDonnell Douglas burden-shifting analysis does not apply. Third, the Court points

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out that in spite of the near strict-liability approach, an employer can defend against such a claim by showing that the employee would have been terminated regardless of the request or need for FMLA leave. In Browns case, the Court decided that while Brown had provided sufficient evidence by which a reasonable jury could find that he was entitled to FMLA leave and that ScriptPro interfered with that leave, the company was able to assert undisputed evidence that Brown would have been fired regardless of the request for time off for his wifes medical appointment. That undisputed evidence included unfavorable feedback in his performance review, and uncontroverted evidence of continued problems, including documented complaints by his co-workers and his supervisors concern related to an incomplete project. The Court noted that its role was not to judge the wisdom of managements responses, but simply to determine whether ScriptPro had come forward with evidence to support the assertion that it would have fired Brown regardless of any FMLA activities. The Tenth Circuit affirmed the dismissal of the case, holding that ScriptPro carried that burden. The Court analyzed the retaliation claim similarly, but pointing out that such claims are subject to the burdenshifting analysis of McDonnell Douglas. First, the employee must set forth a prima facie case of retaliation, showing that he engaged in a protected activity, was subject to a materially adverse action, and there is a causal connection between the two. Once the prima facie case is established, the employer must come forward with a legitimate, non-discriminatory reason for its action. Finally, in order to avoid summary judgment, the employee must show that there is a disputed issue of material fact as to whether the employers reason for its action is pretextual. In Browns case, the Tenth Circuit proceeded directly to the third step of the analysis, and found that although Brown argues that the temporal proximity between his November 19 request for leave and his November 21 firing showed that ScriptPros reasons for the termination were actually based on protected activity, he failed to proffer any additional circumstantial evidence of retaliatory motive. Without that, Brown failed to carry his burden of proving that the legitimate reason given for his firing was simply a pretext for retaliation. While the analysis of the two claims differed slightly, the employers success in each rested on the objective documentation of the performance issues on which Browns termination was based. That documentary evidence was the key to the success of ScriptPros ability to show that it would have terminated Brown regardless of any FMLA request or rights (the interference claim), as well as to the companys ability to overcome Browns allegation that the reasons proffered for his termination were pretextual (the retaliation claim). This case serves as a reminder to employers of the importance of objective documentation of the business reasons for employers decisions, especially when faced with a possible FMLA-related situation. Tags: FMLA, interference, retaliation

Posted on November 12, 2012 by Maria Danaher

Employee's signs of severe emotional distress and anxiety may constitute a "report" of the need for FMLA leave.
To state a claim of interference under the Family and Medical Leave Act (FMLA), an employee must show that he or she has put the employer on notice that an absence may be covered by the FMLA. This ordinarily means that at least verbal notice must be provided to the employer within one or two business days of the point at which the need for leave becomes known to the employee. Recently, the 8th U.S. Circuit Court of Appeals reversed summary judgment in an employers favor, holding that an employees signs of severe distress and anxiety were sufficient to inform her employer of the possible need for medical leave. Clinkscale v. St. Therese of Hope, 8th Cir., No. 12-1223, November 13, 2012.

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Ruby Clinkscale worked as a nurse at St. Therese of Hope long-term care facility in New Hope Minnesota in the facilitys rehabilitation (rehab) unit. Although staff members were to float among the different units of St. Therese, Clinkscale had received training only for the rehab unit and worked there from 2005 through October 11, 2010, when she was reassigned to the long-term care unit. When Clinkscale expressed concern to her supervisors about working in long-term care without unit-specific training, she was told that she had no choice and that she if didnt do that work, it would be considered patient abandonment for which she could lose her license. Clinkscale immediately went to St. Thereses human resource office to express her concern to the HR Director, Rand Brugger. During the meeting, Clinkscale was crying and shaking so severely that she requested an ambulance for herself. In light of that distress, Brugger told Clinkscale to go home and that they would speak again on the following day. Early the following morning, October 12, 2010, Clinkscale met with her doctor, who diagnosed a situationally triggered anxiety attack and prescribed therapy and medications. The doctor also provided a note recommending that Clinkscale take the remainder of the week off work. At 9:30 on that same morning, Clinkscale delivered that note to St. Thereses HR department and in response, was provided FMLA forms which were to be completed by her doctor. However, later on that same day, Clinkscale was called at home and told that she had been terminated effective on October 11 for walking off the job. Ten days later, St. Therese registered a complaint regarding Clinkscale with the Minnesota Board of Nursing, alleging that Clinkscale had refused a work assignment and had walked out of her job. Clinkscale filed a lawsuit alleging, among other things, an FMLA interference claim. The lower court granted summary judgment in favor of St. Therese, holding that Clinkscale was not entitled to FMLA leave because she already had been fired at the time of her request on October 12, and because she had been fired for reasons wholly unrelated to the FMLA. On appeal, the Eighth Circuit reversed the summary judgment, holding that Clinkscales manifestations of extreme distress and anxiety after her reassignment on October 11 could reasonably be viewed as notification to the employer of a serious health condition. Further, Clinkscale left the premises on October 11 only after being instructed to do so by the HR Director. Further, when she returned on the following day with her doctors note, Clinkscale was provided with FMLA paperwork, a clear indication that St. Therese viewed her situation as a possible FMLA-related occurrence just prior to informing her of her termination. An employer cannot avoid legal liability by firing someone who takes leave for a condition that ultimately may be diagnosed as a serious health condition requiring FMLA leave. When St. Therese told Clinkscale to go home to attend to her condition, provided FMLA paperwork to her, and then decided instead to fire her before she could submit completed paperwork, it created an issue of fact under which a jury could reasonably conclude that notice had been provided to St. Therese by Clinkscale as required under the FMLA, and that St. Therese interfered with Clinkscales possible leave. It is important to note that the Eighth Circuit did not find that St. Therese was in violation of the FMLA. It simply found that based upon the facts as asserted by Clinkscale, a jury would have to determine whether notice of a serious health condition was provided by Clinkscale to St. Therese as soon as practicable as required by the FMLA, and whether St. Therese interfered with Clinkscales possible FMLA leave when it terminated her for leaving work on October 11, 2010. Tags: FMLA

Posted on August 6, 2012 by Maria Danaher

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FMLA does not prohibit termination of employee who abuses leave.


The FMLA permits eligible employees to take up to 12 workweeks of leave during a 12-month period if a serious health condition . . . makes the employee unable to perform the functions of [his or her] position. Employers are prohibited from interfering with qualified employees benefits or leave under the FMLA. However, the 3d U.S. Circuit Court of Appeals recently held that the FMLA does not shield an employee from discharge merely because an alleged misconduct occurred during an FMLA leave, nor does it prohibit termination of an employee who abuses the terms of an FMLA leave. Warwas v. City of Plainfield, 3d Circuit, No. 11-1736, July 25, 2012. Jadwiga Warwas, a licensed physician, was hired in 2003 by the City of Plainfield, New Jersey, as the Citys Health Officer. In 2006, Warwas requested sick leave under the FMLA for several health issues. In order to determine Warwass eligibility for leave, Plainfield required Warwass treating doctor to complete a medical provider certification form. The doctor completed the form, indicating that Warwas was restricted to home and could not work/attend school. Based on that information, Plainfield granted the leave request. In spite of the treating physicians assertion that Warwas was unable to work, Warwas continued to work at home on a part-time basis for the City of Paterson, New Jersey. When Plainfield learned about that work, it terminated Warwass employment on September 30, 2006. Warwas appealed that termination to the Merit Systems Board, which ultimately reinstated her employment. However, during the month of April 2008, Warwas was expected to return to work, and was told that further absences would result in her termination. When she failed to return, her employment was again terminated. Warwas brought an action against Plainfield for interference with FMLA leave. At the close of discovery, Plainfields motion for summary judgment was granted, and Warwas appealed. The Third Circuit upheld the district courts decision after finding that Plainfield terminated Warwas for reasons entirely unrelated to the exercise of her rights under the FMLA. Plainfield believed that Warwas had failed to use her FMLA leave for the intended purpose when, in spite of her doctors assertion that she was unable to work, Warwas continued to work for Paterson while on leave. According to the Third Circuit, Warwas is not entitled to a greater degree of protection for violating Plainfields Municipal Code merely because she was on FMLA leave when caught and terminated. The Court found that Warwas was terminated not for her use of FMLA leave, but for the perceived misuse of the leave and her subsequent failure to return to work. Because this opinion is not precedential, the Court did not provide extensive factual or procedural detail which may have more fully explained the more than five-year lapse of time between the initial termination action and the 2012 Third Circuit decision. However, the basic rationale is clear: the FMLA does not prohibit an employer from firing an employee who abuses FMLA leave, or who violates an employers policy while on that leave, even if the employee is eligible and qualified for the leave. An employer can defeat an FMLA interference claim by providing evidence of an honest belief that either of those circumstances is present. Tags: FMLA, violation of policy, working during FMLA leave

Posted on July 16, 2012 by Maria Danaher

Employer's mistaken allowance of FMLA leave can create liability for retaliation.
In order to be granted a leave of absence under the Family and Medical Leave Act (FMLA), an employee first must fulfill certain eligibility requirements, including having worked for the employer for at least 12 months, and having worked for at least 1250 hours within the prior calendar year. Individuals who do not reach those initial

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thresholds typically do not qualify for FMLA leave. However, on July 17, 2012, the U.S. District Court for the Eastern District of Pennsylvania denied a motion to dismiss the claim of a county nursing assistant who was fired because she took FMLA leave to care for her son, finding that the employer was estopped from arguing that the FMLA discrimination claim should be dismissed based on ineligibility under the leave law, because county officials had led the plaintiff to believe that she was qualified to take such leave. Medley v. Montgomery County, EDPA, No. 2:12-cv-01995, July 17, 2012. Amy Medley was employed by Montgomery County, Pennsylvania, as a nursing assistant. Medleys son has serious health conditions, including Aspergers Syndrome, developmental delay, and anxiety disorder. Although she had worked for less than 1250 hours during the prior 12 month period, Medley requested and was granted intermittent leave to care for her son. County officials told Medley that she qualified for FMLA leave, and asked her to fill out various County FMLA forms. She also was provided with documents that stated that she was eligible for family care leave after three continuous months of employment. However, as Medley began to take intermittent leave, she was written up for her absences. When she raised the issue with a County H.R. Official on April 19, 2011, she was dissuaded from filing a grievance and was told not to worry, because nothing was going to be done to her. The next day, Medleys employment was terminated, and she was told she was fired because of leave she exercised on April 17, 2011, once of the absences that Medley believed was covered by her FMLA leave. Medley filed a lawsuit in federal court, including claims of interference with her FMLA rights and of retaliation under that Act. The County filed a Motion to Dismiss the complaint, arguing that Medleys claims should be dismissed because it was undisputed that Medley did not satisfy this basic prerequisite for an FMLA claim. In response, Medley argued that because she was told that she was eligible for FMLA leave, the doctrine of equitable estoppel should now preclude the County from asserting that her FMLA claims fail because she was not eligible. Upon review, the district court determined that Medleys claim of interference with her FMLA rights failed, simply because Medley possessed no actual FMLA right with which the County could have interfered. However, in order to support her claim of retaliation, Medley simply had to show that she was treated adversely because she took FMLA leave. In reviewing that claim, the court determined that actual entitlement to FMLA leave was not an essential element of the claim. Instead, the court quoted a decision by the 5th U.S. Circuit Court of Appeals which held that [A]n employer who without intent to deceive makes a definite but erroneous representation to his employee that she is . . . entitled to leave under the FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage if the employee reasonably relied on the misrepresentation to her detriment. While the district court refused to allow Medleys interference claim, it allowed her retaliation claim to go forward under that analysis. Although the difference between the district courts analysis of Medleys interference claim and its analysis of her retaliation claim is subtle, it is worth understanding. While the court refused to retroactively endow Medley with actual FMLA rights because of her employers misinformation about her eligibility, it also refused to allow that employer to take advantage of the mistake by firing Medley for what she believed to be FMLA-related absences. Although this decision could be appealed to the Third Circuit, the district courts message is clear: once an employer grants FMLA leave to an individual, even if that allowance is based upon a miscalculation of eligibility requirements, the employer cannot then take adverse action based upon an absence associated with the faux FMLA leave. To do so may create liability for under the FMLA for a claim of retaliation. Tags: FMLA, estoppel, retaliation

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Posted on July 9, 2012 by Maria Danaher

Visit to doctor for prescription refill is not "treatment" for purposes of FMLA.
The Family and Medical Leave Act (FMLA) provides unpaid leave time to eligible employees under specific circumstances, including the serious health condition of the employee. It is a violation of the FMLA for an employer to interfere with an employees use or attempted use of FMLA leave time. The 7th U.S. Circuit Court of Appeals has held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012. Robert Jones began working for C&D Technologies in 2000 as a machine operator in the companys Attica, Indiana plant. During the course of his employment, Jones experienced periodic leg and back pain, as well as bouts of anxiety, for which he requested intermittent FMLA leave. C&D implemented an attendance policy that assigned points to absences. For instance, an employee who missed more than four hours of a scheduled shift was assigned one point, while absences lasting less then four hours were assessed one-half a point. Employees also were required to report an absence no later than 30 minutes prior to a shift-start, or an additional one-half point would be added. Points were not assessed for pre-approved FMLA absences. Any employee accumulating one point within a four month period was given a written warning; a second written warning was given to anyone accruing two points in that period; and a third point within that period resulted in termination. In September 2009, C&D was aware that Jones required periodic treatment for his leg pain and for anxiety. On September 30, Jones spoke to C&Ds FMLA coordinator to request FMLA leave for a 1:00 p.m. appointment at a clinic in Crawfordville, Indiana set for the following day. The coordinator reminded Jones to inform his supervisor of the absence. At that point, Jones already had accumulated 2 absence points within the prior four months. On October 1, Jones missed his entire shift. At approximately 10 a.m. on that date, he made an unscheduled visit to his local doctors office to confirm that his file had been transferred to the Crawfordsville clinic, and to pick up a prescription refill note. He then drove to Crawfordsville for his 1:00 appointment at the clinic. Whether or not Jones reported his absence to his supervisor is a matter of dispute. Because of Jones October 1 absence, C&D suspended him, pending an investigation, and determined that Jones could have been assessed 1 points: one point for a full day of absence, and point for failing to report the absence. However, because Jones had a pre-arranged medical appointment on the afternoon of October 1, and because Jones reported leaving a voicemail for his supervisor, he was assessed only point for his absence during the morning of October 1. That one-half point took his total points to three, leading to his discharge. Jones filed a lawsuit, arguing that his absence on the morning of October 1 was for treatment for his serious health condition, because it involved obtaining a prescription for medication. The lower court determined that Jones morning errands on October 1 did not constitute treatment as a matter of law, and awarded summary judgment to C&D. Jones appealed that decision. The Seventh Circuit upheld the dismissal. It pointed out that the FMLA entitles an employee to leave if the employee suffers from a serious health condition that makes the employee unable to perform the functions of [his] position. The DOL regulations define an employee unable to perform his duties as one who must be absent from work to receive medical treatment for a serious health condition. The word must implies that the employees absence is necessary for the treatment. Alternatively, an absence for unnecessary treatment, or for no treatment at all, means that the employee is not unable to perform the functions of his position. Therefore, Jones situation revolved around the definition of treatment.

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According to the Seventh Circuit, while the DOLs definition of treatment includes the phrase a course of prescription medication, the FMLA requires something more than that to become entitled to leave the actual inability to perform job functions. Jones absence was not based upon his inability to do his job. Instead, on the morning of October 1, he made an unscheduled visit to his doctor to check on medical records and to ask for a prescription refill. His doctor did not examine him, or treat him, and spoke only briefly to him. There was no treatment provided and, therefore, no FMLA-qualifying leave. Employers should recognize that this case cannot be interpreted to exclude every medical visit from FMLA leave when one reason for the visit was obtaining prescription medication. Instead, the entire purpose of the visit to the physician must be assessed, and viewed in the light of the employees FMLA-qualifying medical condition. If, in fact, actual treatment is being provided, the absence is likely to be deemed FMLA leave. Tags: FMLA, FMLA interference, prescription medication, treatment

Posted on July 2, 2012 by Maria Danaher

DOL publishes its "plain language" explanation and guidebook for the FMLA.
The Family and Medical Leave Act (FMLA) entitles eligible employees to twelve weeks of unpaid leave each year for certain medical issues for themselves or immediate family members. Employers are prohibited from discriminating or retaliating against an employee who exercises FMLA rights. Employers and employees alike often are stymied by the administrative complexity of the FMLA process, including both application for and implementation of its leave provisions. In an attempt to clarify the processes associated with the FMLA, the Department of Labor (DOL) has issued a 20-page summary entitled Need Time? The Employees Guide to the Family and Medical Leave Act. While the booklet is directed primarily to employees, with flowcharts and Q-and-A sections with titles like: What Can the FMLA do for Me? and How Do I Request FMLA Leave? it also provides to employers a roadmap of the process that the DOL is likely to use when a case comes before it that includes a claim of FMLA interference or retaliation. For instance, the booklet begins with the question, Am I Eligible for FMLA Leave? and a flowchart that walks through clearly worded questions, each requiring a simple yes-or-no response, to allow an individual to understand the requirements for eligibility for FMLA leave. It then defines the serious health conditions for which an employee may request FMLA leave. Unfortunately, in its attempt to make the booklet as succinct as possible, the DOL has left out some of the nuances that courts have woven into their interpretation of the FMLA. For instance, the wording of the serious health condition section may cause confusion on the issue of whether any three-day absence is sufficient to support a request for leave, and whether that particular absence must include a visit to a medical provider, in order to qualify as serious. However, generally, the DOL has summarized the FMLAs provisions in an understandable, user-friendly manner. The section entitled The FMLA Leave Process is especially valuable to employers, because it is a step-by-step guide that includes both the employers obligations and the employees responsibilities for successfully navigating the FMLA leave application process, and reminds employers of the time limits for responding to an employees request or certification information. In addition, the DOLs explanation of the required Medical Certification may actually benefit employers, who often fail to provide specifics in their certification request, and may then have to follow up when an employee or a medical provider has questions about what kind of information is sufficient to support a request for leave. While employees and employers both often shy away from governmental publications, assuming perhaps that

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the language will be convoluted or the information will simply be a self-serving summary of a particular law or regulation, this booklet does not fall into either category, and is worth reviewing. For employees, the publication provides a clear and concise summary of the FMLAs provisions; for employers it explains exactly what the DOL believes the process to be, and how employers should be implementing it. Tags: DOL, Employee's Guide, FMLA, certification

Posted on May 14, 2012 by Maria Danaher

Taking FMLA leave does not affect employee's obligations under non-FMLA attendance policies.
Employment termination during an employees leave under the Family and Medical Leave Act (FMLA) may constitute interference with that leave. However, an employer typically does not violate the FMLA if it terminates an employee for failing to comply with the companys policies regarding absences, even if those absences occur during a protected FMLA leave. A recent decision by the 3d U.S. Circuit Court of Appeals reminds us that the FMLA is not a law that can remedy an employees failure to follow a companys sick leave policies. Pellegrino v. Communications Workers of America, AFL-CIO, CLC, 3d Cir., No.11-2639, April 19, 2012. Denise Pellegrino began her employment with the Communications Workers of America (CWA) in 2005. In 2006, the CWA revised its Sickness & Absenteeism Policy to require employees on paid sick leave to remain in the immediate vicinity of their home during the period of such a leave, unless permission was obtained in writing prior to such travel. Under the 2006 CWA policies, FMLA leave ran concurrently with any available paid sick leave. In August 2008, Pellegrino requested FMLA leave for surgery. Paperwork was provided to Pellegrino, informing her of her rights and obligations under the FMLA. She also was provided with two separate medical certification forms one for FMLA and the other for paid sick leave and was notified that she was required to substitute paid leave under CWAs sick leave policies for the period of time during which she qualified for sick leave benefits. Pellegrino submitted both certificates, and was granted four weeks of FMLA leave, which was to run concurrently with four weeks of available paid sick leave. Pellegrino began her leave on October 2, 2008, the date of her surgery; she received full pay and benefits under the CWA sick leave policy. About two weeks after the surgery, and without prior notice to CWA, Pellegrino traveled to Cancun, Mexico with three other individuals, and spent a week there. When she returned, Pellegrino was asked to meet with the administrative director of her CWA office, who asked about the trip. After Pellegrino admitted to having taken the trip, her employment was terminated, based upon violation of CWAs sick leave policy. Pellegrino sued CWA in January 2010, alleging interference with her rights under the FMLA. The district court found that because Pellegrino had been on both FMLA leave and paid sick leave, a combination allowed by law, she remained bound by CWAs sick leave policy. Because that sick leave policy was not inconsistent with the FMLA, CWA did not interfere with Pellegrinos FMLA rights. On appeal, the Third Circuit agreed with that rationale. Although Pellegrino protected that she had not received sufficient notice of her obligation under the sick leave policy, the CWA submitted evidence that it had: (1) provided a DOL-approved form to Pellegrino regarding FMLA; and (2) e-mailed the sick leave policy to Pellegrino in the past. While it took the opportunity to call Pellegrinos termination harsh, and even viewing the facts in the light most favorable to Pellegrino, the Third Circuit agreed with the district court that CWA did not interfere with Pellegrinos rights under the FMLA. The message to employers is clear: if a written sick and absence policy is disseminated to employees, and if that

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dissemination is fully documented, employers have a legitimate expectation that discipline imposed for violation of that policy will be upheld, even if the absences were taken pursuant to leave under the FMLA, so long as the absence policy is not inconsistent with the terms and purpose of the FMLA. Tags: CWA, FMLA, Termination, sick leave

Posted on December 19, 2011 by Maria Danaher

Invalid FMLA certification can form the basis of employment termination.


In order to support a valid claim of retaliation under the Family and Medical Leave Act (FMLA), an employee must demonstrate that the reason given for an adverse employment action was pretextual, and that the employees request for or use of FMLA leave was the actual basis of the action. The 6th U.S. Circuit Court of Appeals has held that an employers rejection of an invalid FMLA certification was a valid reason for termination, and that the employees inability to proffer evidence of an alternate explanation for the companys actions led to the dismissal of her lawsuit. Coffman v. Ford Motor Company, 6th Cir., No. 10-3842, unpublished opinion, 11/22/11. The FMLA entitles eligible employees to twelve weeks of unpaid leave each year for, among other things, a serious health condition that precludes the employee from performing his or her job. Employers are prohibited from discriminating or retaliating against an employee who exercises her FMLA rights. In order to succeed on a claim of retaliation under the FMLA, an employee must first present a prima facie case that includes her eligibility for FMLA leave, the fact that she took the leave, and the fact that an adverse action was taken against her. The burden then shifts to the employer to provide a legitimate business reason for its action. Once that is done, the employee cannot succeed on a retaliation claim unless she can prove that the proffered reason is actually a pretext. To establish pretext, the employee must either show that the proffered reason had no factual basis, that the given reason did not actually motivate the action, or that such reason was insufficient to warrant the action. Jami Coffman began working for Ford Motor Company in July 1999. In 2004, she had frequent absences, which she attributed to health issues. Although she provided medical documentation for many of those absences, she failed to provide valid and timely information for ten periods of absence within an eight moth period. Those ten occurrences led Coffman into the companys disciplinary process, established under a collective bargaining agreement, resulting in her termination. That termination occurred shortly after Coffman had been diagnosed with sleep apnea. Coffman then sued Ford, claiming that her termination was the result of her request for FMLA leave. The district court granted summary judgment in favor of the company, and the Sixth Circuit upheld that decision, holding that Coffman fell short of demonstrating that Fords reason for the termination was pretext for FMLA retaliation. Under the companys written policies, employees requesting FMLA leave would receive documents to be completed by a physician within 15 days. The policy specifically pointed out that incomplete certification could cause absences to be viewed as absence without leave, which could lead to discipline up to termination. Coffman submitted paperwork that consisted of two forms that provided two divergent diagnoses for the absences, and neither included supporting information. Further, the signatures on the documents differed markedly from signatures of the same doctors on medical documentation previously submitted by Coffman. Faced with the contradictory, questionable certifications, Ford sought clarification by asking Coffman to request medical records to support the certifications. In response, Coffmans doctor provided a single document that included only a list of medications. Rather than supporting the initial certification, this information simply

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created new contradictions. Ford took no further action, and viewed the absences as unexcused, which ultimately led to Coffmans termination and her subsequent law suit. In spite of Coffmans argument that Ford improperly classified her as AWOL, the Sixth Circuit found that although FMLA certifications that contain all required information are presumptively valid, an employer can rebut that presumption by demonstrating that the certification is invalid, contradictory, or of an otherwise suspicious nature. Here, the certifications submitted were medically contradictory and the inconsistent signatures created suspicion. To its credit, the company took the additional step of asking for further information in an attempt to clarify the contradictory nature of those certifications. However, that supplemental information actually increased the confusion, supporting the companys decision to deny FMLA leave for the absences. Employers cannot avoid liability under the FMLA simply by arbitrarily labeling an employees certification as invalid. Incomplete FMLA certifications are distinguishable from invalid ones. When a certification is incomplete that is, it does not provide sufficient information to justify FMLA leave - an employee must be provided with a reasonable opportunity to cure any alleged deficiency. The regulations that support the FMLA make it clear that employers must work to clarify certifications offered by employees, and can do so by asking for a second opinion from a different provider (at the employers expense), or get permission from the employee to clarify or authenticate questionable certification with the healthcare provider. It is in the best interest of both employers and employees to use these discretionary measures to avoid disputes that could lead to disruptive and expensive lawsuits. Tags: FMLA, certification, retaliation

Posted on November 20, 2011 by Maria Danaher

Alleged comments by HR director sufficient to defeat company's motion for summary judgment.
Remarks by a law firms human resources director could be direct evidence of pregnancy discrimination and violation of the FMLA, according to the 7th U.S. District Court of Appeals. According to the court, such evidence falls outside of the hearsay objection that might otherwise keep it from being presented to a jury. Makowski v. SmithAmundsen LLC, 7th Cir., No. 10-3330, November 9, 2011. Lisa Makowski was employed as Marketing Director for the SmithAmundsen law firm between January 2005 and her termination in February 2008. During her employment, Makowski received annual salary increases and discretionary bonuses based on her performance. In the summer of 2007, Makowski informed the firms management that she was pregnant. She requested, and was granted, leave under the Family and Medical Leave Act. Between November 5 and November 25, Makowski worked from home with the firms permission, as she had been placed on bed rest by her obstetrician. She began her FMLA leave on November 26, and gave birth on December 2. In January 2008, the firms Executive Committee conducted its firm retreat, at which it annually assessed the overall structure of the firm to determine whether staffing changes were necessary. At that retreat, the Executive Committee decided to terminate Makowski and to move another individual into the leadership position with the Marketing Department. After that meeting, the Committee informed the firms Human Resources Director, Molly OGara, that Makowski didnt fit into our culture, and asked OGara to consult with outside counsel to discuss the implementation of Makowskis firing. On February 4, 2008, while Makowski was still on maternity leave, her employment was terminated over the

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telephone. In that conversation, Makowski was told that her position was being eliminated as part of an organizational restructuring. Later that day, Makowski came into the office to pick up her personal belongings. According to Makowski, as she was leaving the office, she was met by OGara, who told her that the actual reason for the termination was because of Makowskis pregnancy and FMLA leave, and that the same thing had happened to several other women employees in the past. OGara allegedly suggested to Makowski that she should speak to a lawyer about a possible class action on the issue. Makowski filed a lawsuit on December 2, 2008, alleging violations of both the Pregnancy Discrimination Act and the Family and Medical Leave Act, and cited OGaras alleged remarks as direct evidence of discrimination. The firm moved for summary judgment, and the motion was granted, based on the fact that because OGara had not been directly involved in the decision to terminate Makowski, her statements concerning the termination were inadmissible hearsay. Without those statements, Makowski lacked evidence of the connection between her termination and any discriminatory acts by the firm. On appeal, the Seventh Circuit reversed that decision. It found that because OGaras statements concerned a matter within the scope of her duties as HR Director, they fell within an exception to the hearsay rule. Essentially, that exception means that the agent acting within the scope of his or her employment with the company speaks on behalf of the company and that, therefore, his or her statement is actually a party admission that can be used to support a claimants case. Here, OGaras alleged comments to Makowski fit within the scope of OGaras duties as an HR Director who was involved in the firms hirings and firings. Further, the court pointed out that OGaras discussions with outside counsel at the request of the Executive Committee could actually support an argument that OGara was directly involved in the final decision to fire Makowski, since the Committee waited for the counsels imprimatur before implementing the termination. This case sets out an important lesson for employers and underscores the need for training for managers, supervisors, and HR personnel, especially with respect to having the difficult conversations needed for disciplinary and termination meetings. The importance of the use of talking points for disciplinary and termination meetings cannot be overstressed. Any remarks outside of pre-established, pre-rehearsed talking points could be used as in this case to argue to the jury that the official reason given for the adverse action was simply a pretext for discrimination. Tags: FMLA, Gender discrimination, Title VII, hearsay, pregnancy discrimination

Posted on October 24, 2011 by Maria Danaher

Supervisor's ill-considered e-mail forms the basis of an FMLA lawsuit.


The Family and Medical Leave Act (FMLA) prohibits employers from interfering with an employees right to take leave for which that employee is eligible under the Act. Recently, the 7th U.S. Circuit Court of Appeals overturned the dismissal of an employees FMLA lawsuit, and sent the case back to the lower court for further proceedings. A jury will now decide the issue of whether the individuals employment termination was based upon his announcement that he was going to take four to six weeks of leave time for knee replacement surgery. A supervisors e-mail that references an upcoming medical leave will be a primary element of the employees claim. Shaffer v. American Medical Association, 7th Cir., No. 10-2117, October 18, 2011. William Shaffer first worked for the American Medical Association (AMA) in 1999. Although he resigned a year later, the AMA rehired him in 2004 as a contract employee. In 2005, he was hired as a full-time employee, and advanced to become the AMAs Director of Leadership Communications, reporting to supervisor Michael Lynch. In August 2008, the AMA began cost-saving measures, including a request to all departments to reduce

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budgets and, ultimately, to eliminate positions. In October 2008, Lynch was contacted by the Chief Marketing Officer, Marietta Parenti, who requested a recommendation regarding the elimination of one position in Lynchs group. It was Lynchs plan to eliminate the Communication Manager position held by Peter Friedman, based on certain business-related reasons. On October 28, Parenti asked Lynch whether it made sense to eliminate Shaffers position, as well. Lynch responded that further eliminations would not be in the AMAs best interest at that time. On November 20, 2008, Shaffer informed Lynch that he was planning to take 4 to 6 weeks off in January in order to undergo and recover from knee replacement surgery. On November 30, Lynch sent an e-mail to Parenti, explaining that he had re-thought his recommendation, and now believed that the AMA should eliminate Shaffers position and retain Friedman. The e-mail apologized for his 11th hour change of heart, and specifically stated that the team already was preparing for [Shaffers] short-term leave in January, so his departure should not have any immediate negative impact. On December 4, Shaffer was notified by Lynch and Harvey Daniels, an AMA HR representative, that his position was being eliminated and that his employment would end on January 4, 2009. Less than a month later, an after receiving a letter from Shaffers attorney, the AMAs in-house lawyer met with Daniels to let him know that litigation was possible on the matter. The next day, Daniels typed up handwritten notes that he had taken regarding his earlier discussions with Lynch, back-dating them to November 25, 2008. The typed notes stated that Shaffers position was eliminated because Lynch could have the speech writing staff report directly to him, making Shaffers position redundant. He then shredded the original notes. Shaffer filed a lawsuit in federal court. The lower court granted summary judgment in favor of the AMA, and dismissed his claim. Shafer then appealed to the Seventh Circuit, which analyzed the case to determine whether or not there was a genuine factual issue for trial. The Court found that Shaffer was eligible for FMLA leave, and that he had provided notice to Lynch of his intention to take that leave. Prior to that notice, there was no mention of elimination of Shaffers position; after that notice, he was targeted for termination. Based upon those facts, coupled with Lynchs e-mail to Parenti in which the proposed leave was mentioned, the Seventh Circuit determined that a reasonable jury could conclude that Shaffers exercise of his right to take leave under the FMLA was a motivating factor in the decision to eliminate his position. It then reversed the lower courts dismissal of the case. While the Court also pointed to the different explanations given at different times for Shaffers termination, it clearly was Lynchs e-mail to Parenti which specifically mentioned Shaffers request for leave that created the impetus for the lawsuit, and the foundation on which Shaffers FMLA claim rests. While it is possible that Shaffers proposed leave had no actual impact on his termination, the e-mail allows Shaffer to argue that Lynch was considering that leave when the decision was made to eliminate Shaffers position. This situation is a clear example of the need for supervisor training on the FMLA. Supervisors and managers should be informed that a claim of interference with FMLA rights does not require proof of actual intent to interfere, but requires only that plaintiffs prove that the employer somehow denied an exercise of rights under the Act. If an individual can produce evidence that he was fired to prevent his exercise of FMLA rights, he can succeed on an interference theory under that Act.

Tags: FMLA, interference, leave of absence

Posted on July 10, 2011 by Maria Danaher

To invoke FMLA protection for care of another, some geographic proximity is required by

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the employee.
In an unpublished opinion, the 5th U.S. Circuit Court of Appeals has held that an individual who requests FMLA leave to care for a seriously ill family member must have some role in providing the care required by the relatives illness. According to the Fifth Circuit, a father who left his seriously injured daughter in the care of his wife while he readied the familys home for their return was unable to support a claim for FMLA retaliation after he was fired from his job at the conclusion of his FMLA leave. Baham v. McLane Foodservice Inc., 5th Cir., No. 10-10944, unpubd, 7/1/11. Girard Baham was hired by McLane Foodservices, a Texas company, in 2006. During a family vacation in Honduras during March 2008, Bahams daughter fell and suffered serious head trauma. She was airlifted to Miami, where she underwent emergency surgery. At that point, Baham called his supervisor and asked for FMLA leave related to his daughters injury. In response, the supervisor told Baham to take all of the time he needed, and forwarded FMLA leave forms to him for completion. Baham completed and returned the forms, asking for leave from March 20 through May 5, 2008. He subsequently was notified that his paperwork was incomplete, because it did not include information indicating the expected duration of his daughters treatment. However, at no point during his leave did Baham provide the requested information. On April 12, 2008, Baham returned to the familys home in Texas, leaving his wife and daughter in Miami. Baham testified in his deposition that he returned to Texas to clean up the house and prepare for his daughters return by padding sharp edges to protect her from further injury, but stated that he was in constant telephone contact with his wife and daughter at that time. Bahams wife and daughter returned to Texas on April 29, and Baham returned to work on May 5. Upon his return, Baham was informed that his FMLA paperwork still was incomplete, and again was asked to provide the required information. Later that day, Baham left the work premises, leaving his keys and ID with a security guard. The company interpreted his abrupt departure as a resignation, and sent a letter two days later, terminating Bahams employment. Baham then filed a lawsuit, claiming that he was fired in retaliation for requesting/taking FMLA leave. The lower court granted summary judgment to the employer, holding that Baham failed to establish that he was entitled to FMLA leave for the period in which he was in Texas and his injured daughter was in Florida. Because Baham could not prove that he was entitled to leave under the FMLA, he could not support a retaliation claim under that statute. The Fifth Circuit upheld the lower courts decision, stating that because Baham was not taking care of his daughter after he returned to Texas (those are the Fifth Circuits quotation marks), Baham was not entitled to FMLA leave and therefore could not set forth a cognizable claim of retaliation. The Court specifically held that in order to be entitled to FMLA leave, an employee must show that he is needed to care for a family member with a serious health condition, and cited the fact that various courts have affirmed the use of FMLA leave only where the employee is in physical proximity for the cared-for person. Here, it is undisputed that Baham was not with his daughter during the two weeks that he was in Texas, but was simply in regular telephone contact with her. The activities in which he was engaged although undeniably preparation for his daughters return were not care in the sense required by the FMLA, which involves some level of participation in the ongoing treatment of the family members medical condition. Employers should not interpret this case to mean that the employee/caregiver must be the sole provider of care, or that the care must be medical in nature. One federal court specifically held that an employee who cared for his three healthy children while his spouse cared for a sick child supported his FMLA claim; another determined that an individuals need for a nap did not disqualify her from FMLA leave from her evening job when she had spent the entire day caring for a seriously ill child. It is clear that FMLA cases are administratively complex and often factually dissimilar, and cannot be decided in general or blanket terms. The facts of the particular situation

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must be reviewed carefully before a decision is made that would adversely affect the employment of the person requesting or participating in FMLA leave. Tags: FMLA, actual care, retaliation

Posted on June 27, 2011 by Maria Danaher

Plaintiff must demonstrate prejudice in order to be entitled to relief under the FMLA.
The 8th U.S. Circuit Court of Appeals has upheld an employees termination for job abandonment, in spite of the fact that the employee argued that he was on FMLA leave at the time of his termination. The court based that holding on the fact that the employee was unable to return to work at the conclusion of his medical leave, and that he therefore was unable to show that his termination prejudiced his rights under the FMLA. Hearst v Progressive Foam Technologies, Inc., 8th Cir., No. 10-1253, June 8, 2011. The Family and Medical Leave Act (FMLA) provides 12 workweeks of leave during a 12-month period to eligible employees under specific circumstances. One of the criteria of eligibility is that the employee shall have worked for the employer for at least twelve months prior to the requested leave. Jason Hearst became employed with Progressive Foam Technologies (PFT) on March 15, 2006. In December 2006, Hearst was involved in a non-work-related motor vehicle accident, and suffered injuries for which he sought treatment. He requested a leave of absence from PFT for the period from January 3 through February 5, 2007. In spite of the fact that Hearst had worked for the company for less than the requisite 12 months, PFT informed Hearst that he was eligible for leave under the FMLA and that his four-week absence from work would be counted against [his] annual FMLA leave entitlement policy. Hearsts recovery required a longer absence than anticipated, and included two surgeries. On February 6, Hearsts doctor informed PFT that Hearst would not be able to return to work until April 10, 2007. On March 16, 2007, PFT informed Hearst, by letter, that his 12-week FMLA leave would end on March 28, but that the company would allow him to take an additional 30 days, presumably until April 27. That letter included this sentence: If we do not hear from you regarding a specific return to work date, we are assuming that you will not be returning to work in the foreseeable future. On March 29, Hearsts doctor advised PFT that Hearst had undergone an additional surgery and ultimately determined that Hearst would be unable to return to work until May 1, 2007. When Hearst failed to return to work on that date and did not provide any additional information about that failure, PFT fired him for job abandonment. In spite of that firing, on May 15, 2007, Hearsts doctor advised PFT that Hearst would not be able to return to work for another two months, but subsequently extended that anticipated return date to September 2007. Hearst sued PFT, alleging that the company interfered with his FMLA rights when it fired him on May 1, 2007. He argued that his FMLA leave, which could not have started until his one-year anniversary with the company, formally began on March 15, 2007, and that his firing occurred only seven weeks after that date, thereby interrupting his leave entitlement. He further argued that PFT retaliated against him for taking FMLA leave. However, the lower court concluded that Hearst had exhausted his FMLA leave on March 28, 2007, twelve weeks after he began his leave in January. That court counted all of Hearsts leave as FMLA-related, including all absences prior to his anniversary date. It also concluded that Hearsts failure to notify the company that he couldnt return to work on May 1 violated the companys leave of absence policy, and provided a legitimate business reason for firing Hearst. The district court further concluded that even if Hearst had been entitled to

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FMLA until mid-June (as Hearst argued), the May 1 firing did not create the prejudice necessary to support an FMLA claim, because Hearst failed to show that he would have been able to return to work within the allowable time frame during or after his leave. The Eighth Circuit skirted the unique question of whether the pre-March 2007 leave should have counted toward Hearsts 12-week FMLA entitlement, and focused solely on the question of whether Hearst had demonstrated the requisite prejudice necessary to establish a claim under the FMLA. The Court found that he did not. Hearst had a medical condition that created an inability for him to return to work for a period substantially longer than the 12-week FMLA leave period, and that fact was fatal to his claim. Even if the Court had determined - as Hearst argued - that his protected FMLA leave extended until mid-June 2007, he would have had to be able to show that he could have returned before or at the expiration of that leave. Because he was unable to do so, he could not demonstrate any prejudice as a result of his firing, and summary judgment in PFTs favor was appropriate. While this holding is clearly advantageous for employers, it must be pointed out that Hearst did not bring a claim under the ADA or the ADAAA. Had he done so, the Court may have had to do a further analysis of whether PFTs actions were sufficient to constitute the necessary search for reasonable accommodation under those statutes, and whether additional leave may have been such an accommodation. Tags: FMLA

Posted on May 23, 2011 by Maria Danaher

Insufficient medical information justifies refusal of FMLA leave.


The federal regulations that support the Family and Medical Leave Act require that an employee submit to his or her employer certain medical facts within the knowledge of the employees health care provider, including information related to the incapacitation, examination, or treatment that may be required by a health care provider. The 9th U.S. Circuit Court of Appeals has held that a federal employer had the discretion to convert an employees conditionally granted FMLA leave to an absent without leave (AWOL) status after the employee refused to provide more than minimal information about the reasons for her requested leave. Lewis v. U.S.A. and Michael B. Donley, Sect. of the Air Force, 9th Cir., N0. 10-35624, May 26, 2011. Janet Lewis was employed by the U.S. Air Force (USAF) as the director of a child development center at Elmendorf Air Force Base. In 2006, Lewis applied for FMLA leave. In response to the USAFs request for medical certification to support that request, Lewis provided only basic information that she had been diagnosed with Post Traumatic Stress Disorder, and that she needed best rest, therapy, prescription medications, and 120 days off work. When Lewis supervisor informed her that the information was insufficient to allow the USAF to understand why Lewis was unable to perform her duties and whether additional treatment would be necessary for her condition, Lewis refused to submit further documentation. Based upon that refusal, the USAF converted Lewis to an AWOL status, and terminated her employment. Lewis ultimately brought an action in federal court which included an unlawful removal claim on which summary judgment was granted by the district court and in favor of the USAF. Lewis appealed that dismissal to the Ninth Circuit, which upheld the decision. Under the FMLA, an eligible employee is entitled to up to 12 weeks of unpaid leave within a 12-month period for specific situations, including a serious health condition that makes the employee unable to perform the functions of the employees position. An employer has the right to request medical certification that provides sufficient information to allow that employer to understand the incapacitation of the individual seeking leave, as well as what treatment may be required for the impairment. In this case, Lewis medical certification was

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viewed as insufficient by the USAF, which argued that the documents fail[ed] to support the conclusion that that [Lewis] is suffering from a serious health condition, and that they contained no explanation as to why Lewis was unable to perform her work duties. In response, Lewis argued that disputes related to the adequacy of an individuals medical certification should be resolved by the employers request for a second or even third medical opinion a right to which an employer is entitled under the FMLA. However, the Ninth Circuit pointed out that the need for such follow-up opinions is triggered only when an employer has reason to doubt the validity of the certification, and does not apply when the issue is the sufficiency of the proffered certification. Because Lewis failed to submit the minimal mandated medical certification, she cannot prove that the USAF violated her rights when it requested additional information, or when it classified her status as AWOL. It should be noted that while Lewis was a federal employee, the situation that forms the basis of this case and the Ninth Circuits opinion is an issue dealt with by both federal and non-governmental employers alike. While much attention and many court opinions have been focused on employees rights under the FMLA, it is important to understand the rights established by that Act that inure to the benefit of employers, as well. This decision underscores the fact that courts realize that employers are entitled to information sufficient to fully understand the reasons for an individuals leave, and the parameters of the treatment necessary to allow that employee to return to work Tags: FMLA, medical certification

Posted on February 21, 2011 by Maria Danaher

Employee's failure to respond to phone calls from employer regarding his request for FMLA leave precludes a claim against employer under that Act.
Most employers recognize that the Family and Medical Leave Act (FMLA) prohibits them from denying, restraining, or interfering with an employees rights to qualified leave. Last weeks Update addressed a situation in which an employers frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with that employees FMLA rights. (Terwilliger v. Howard Memorial Hospital). In contrast, this weeks case involves a company whose repeated but unanswered calls to an employee regarding his request for FMLA leave formed the basis of that companys successful motion for summary judgment in the case. Righi v. SMC Corp. of Am., 7th Cir., No. 09-1775, 2/14/11. Robert Righi worked as a sales representative for SMC Corporations Aurora, Illinois office. Righi worked primarily from his home in Henry, Illinois, but was expected to check in with his sales manager, Louis King, on a daily basis. Righi lived with his elderly mother, an insulin-dependent diabetic who often required medical attention, and a roommate. On occasion, Righi requested vacation time off in order to care for his mother. He made these requests to King by e-mail, consistent with SMCs policy that required an employee to obtain prior approval from a supervisor before taking leave. The Companys attendance policy stated that an employees failure to report for work for two consecutive days without notifying a supervisor was grounds for termination. Righi was scheduled to attend a two-week training session in Indianapolis from July 9 through July 21, 2006. On July 11, while at the session, Righi received a phone call informing him that his mother had gone into a diabetic coma. Righi told a co-worker that he was leaving to return home, and asked the co-worker to pass along the information. By the time that Righi had completed the four-hour drive to his home, his mother had stabilized. At no time on that day did Righi contact King, although King made numerous unanswered calls to Righis cell phone, which had been switched off.

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The next morning, Righi sent an e-mail to King, explaining that he had left the training session to attend to his mother. In that e-mail, he asked for the next couple of days off. Upon receiving the e-mail, King attempted to reach Righi, via his Company cell phone and home phone, but without success. King did leave at least one qrequest for a call back with Righis roommate, who passed that request to Righi. Righi did not return to work not did he contact King again until July 20, nine days after leaving the training session. Righi was fired for violation of the Companys leave policy. Righi filed a lawsuit alleging violation of the FMLA. The district court granted summary judgment in favor of SMC, and that decision was upheld by the 7th U.S. Circuit Court of Appeals. Once an employee invokes his rights under the FMLA by alerting his employer to the need for leave, the employer has the burden to take certain affirmative steps to process the leave request. The employer has a duty to make further inquiry if additional information is needed in order to process the request. In this case, there is no dispute that SMC attempted to carry that burden to inquire further - Kings numerous phone calls to Righis cell phone and home phone were documented, but were not answered for nine days, far longer than the two days allowed under SMCs policy. According to the Court, Righis failure to respond to these calls or otherwise contact his employer dooms his FMLA claim. While employers have specific obligations under the FMLA which are not obviated by this decision, employers also are entitled to notice about the anticipated timing and duration of a requested leave under the FMLA. Without such notice, Righi was not entitled to FMLA protection for his absence, and his termination was appropriate. According to the Court, if an employee is unable to determine how much leave will be needed, the employee must at least communicate this fact to the employer with an estimate of the likely duration of the requested leave. However, employers also should not overlook the fact that the primary underpinning for this decision was SMCs persistent efforts to reach Righi to clarify his request for leave. Tags: FMLA

Posted on February 14, 2011 by Maria Danaher

Employer's frequent calls to employee during FMLA may create interference with that leave.
Under the Family and Medical Leave Act (FMLA), an employer is prohibited from denying, restraining, or interfering with an employees rights to qualified leave. One federal court recently found that an employers frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with the employees FMLA rights. Terwilliger v. Howard Memorial Hospital, WDAK, No. 09-CV-4055, January 27, 2011. The FMLA provides to eligible employees up to 12 weeks of unpaid leave for qualifying conditions, and precludes employers from interfering with an employees rights under the Act. Under the regulations associated with the Act, interference includes discouraging an employee from using FMLA leave. Regina Terwilliger was employed as a member of the housekeeping staff at Howard Memorial Hospital in November 2008 when she applied for FMLA leave. Her application was granted on November 26, 2008; Terwilliger underwent back surgery on January 29, 2009. During her recovery, Terwilliger received weekly phone calls from her immediate supervisor, asking for a return to work date. According to Terwilliger, she felt pressured into returning and, in fact, during one call, asked her supervisor if her job was in jeopardy. The supervisor simply replied that Terwilliger should return to work as soon as possible. Terwilliger returned to work on February 16, 2009, less than three weeks after her surgery.

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In October and November, 2008, four Hospital employees had money stolen from their desks or lockers. In December, Hospital management placed a camera in one office area. On March 9, 2009, in spite of the fact that Terwilliger was not assigned to clean that particular office, she was caught on tape opening a desk drawer, looking into it, and closing it without removing anything from the drawer. She then was terminated, along with another housekeeping employee who also was caught on tape removing something from the desk drawer and placing it into her pocket. Terwilliger filed a lawsuit claiming violation of FMLA. She alleged that she was denied the full benefit of her leave, because she was pressured to return to work after her surgery. She also claimed that she was fired in retaliation for taking FMLA leave. The hospital filed a motion for summary judgment, arguing that Terwilliger was released by her doctor to return to work, and that she was not deterred from taking her full 12-week FMLA leave. It also argued that its reason for firing Terwilliger was based upon a legitimate business reason the violation of its policy against stealing. In spite of Terwilligers protests that she had not stolen anything and that, therefore, the Hospital retaliated against her by firing her, the district court held that the relevant inquiry was whether the Hospitals articulated reason for Terwilligers termination was a pretext for retaliation, and not whether Terwilliger actually did what she was accused of doing. The court granted summary judgment on the retaliation claim. However, it denied summary judgment on the interference claim, holding that the supervisors weekly phone calls to Terwilliger may have discouraged her from fully exercising her rights under the FMLA. Therefore, a jury will have to decide that claim. Employers should understand the administrative complexities of the FMLA, and must recognize the limitations that the Act imposes on employers. While there is no prohibition on obtaining information related to the anticipated length of a leave under the FMLA, it is unwise to over-communicate requests to return to work which, as seen in this case, could be viewed as possible interference with an employees rights. Tags: FMLA

Posted on December 12, 2010 by Maria Danaher

Employer can require compliance with call-in policy, even during FMLA leave.
The 8th U.S. Circuit Court of Appeals has held that an employee who was fired for repeatedly violating her employers call-in policy cannot proceed with her lawsuit under the FMLA. Thompson v. CenturyTel of Central Arkansas,LLC, 8th Cir, No. 09-3602, December 3, 2010. Loretta Thompson began working for CenturyTel, a telecommunications company, in 2003. In 2006, Thompson began reporting to Carolyn Wilson, a Programming Supervisor. When Thompson began her employment, she received an employee handbook that included a call-in policy that required employees to call the supervisor each day during a period of absence. Any employee who failed to provide proper and timely notice for three consecutive workdays, or for three separate workdays during a 12-month period was deemed to have voluntarily terminated employment. Thompson also acknowledged receiving written departmental policies that included the call-in policy in 2006, 2007, and 2008. The departmental policies specifically provided that call-ins were to be made directly to Wilson and, if Wilson was unavailable, that a voice mail message was to be left for Wilson, notifying her of the absence. Wilson also permitted her employees to call in weekly, once a formal approval of FMLA leave had been issued. In the summer of 2007, Thompson applied for and received a four-week FMLA leave. During this period,

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Thompson failed to call in as required. Once she returned from the leave, Wilson gave a verbal warning to her, and reminded her of the companys call-in policy. On April 30, 2007, Thompson did not report to work and did not call in to report her absence for that day. When Wilson called Thompson at home, Thompson claimed not to have been aware that she was scheduled to work that day. On November 16, 2007, Thompson called in sick and told Wilson that she would be off work until November 21. Although Thompson had been scheduled to work on November 17, 20, and 21, she did not call in on those three days. Thompson subsequently claimed that she did not call in on those days because she planned to apply for FMLA leave for the absence. Thompson received a written warning for her failure to call in on those three days. The warning specifically stated that Thompson was expected to follow Company policies and procedures, and that failure to do so could lead to further disciplinary action up to and including termination. On January 29, 2008, Thompson left a voice mail for Wilson stating that she was sick. Thompson reported to work the next day, but left early for a doctors appointment. Later that same day, Thompson left a message for Wilson saying that she could not return to work until February 5, 2008, but did not speak to Wilson or leave further messages for her after that.. On February 5, Wilson returned to work and was told that her employment was terminated, because she had violated the call-in policy seven times within the past 12 months. Thompson sued CenturyTel for violation of the FMLA, claiming that CenturyTel interfered with her leave under that Act. CenturyTel defended the claim by saying that Thompson was fired not because of her FMLA leave, but because she had violated the companys call-in policy. The lower court granted summary judgment for the employer, and the Eighth Circuit upheld the decision on appeal, in an unpublished opinion. FMLA regulations specifically provide that an employer may require an employee on FMLA leave to report periodically on the employees status and intent to return to work. Thompson did not dispute that she failed to comply with the call-in policy, but argues that she would not have been terminated if she hadnt taken FMLA leave. The Eighth Circuit held that to the contrary, Thompsons repeated violations of the companys policy were not directly related to any particular FMLA leave but to her failure to report her own absences as required and, therefore, summary judgment in the companys favor was appropriate. Here, CenturyTels clear, understandable, widely disseminated, and consistently enforced policy paved the way for the dismissal of Thompsons lawsuit. The fact that Thompson had received the policy in writing in each of the years that she worked for Wilson was a critical element of the companys successful defense in this case, and is a mechanism that should be noted by employers who decide to implement a call-in policy for absences that include FMLA-related absences. Tags: FMLA

Posted on September 27, 2010 by Maria Danaher

Employer should allow certification period to expire before taking adverse action based on employee's failure to provide FMLA medical certification.
The 6th U.S. Circuit Court of Appeals has held that an employer must wait until the expiration of the medical certification period in order to deny FMLA leave to an employee. Branham v. Gannett Satellite Information Network, Inc., 6th Cir., No. 09-6149, September 2, 2010. Deborah Branham filed suit against her employer, The Dickson Herald, a newspaper owned by the Gannett
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Satellite Information Network, Inc. (Gannett), after she was terminated for failure to follow the companys attendance policy. On November 6 and 7, 2007, Branham was absent from work because her son was ill. On November 8, Branham called the papers office manager (Buhler) to say that she (Branham) was sick and would be absent that day. She did the same on November 9. On Monday, November 13, Branhams husband called Buhler to say that he was taking Branham to see a doctor (Dr. Singer). At her appointment with Dr. Singer on that day, Branham reported herself to be suffering from migraine headaches, menstrual problems, depression, insomnia, and a stomach virus. However, Dr. Singer released Branham to return to work on November 14, and Branham called to let Buhler know that. Buhler then asked Branham to come in to fill out paperwork for short term disability leave. However, Branham did not return to work on November 14 even though she was release to return that day, nor did return at any point after that. She did, however, fax a medical certification noting her return to work date as November 14. When Branham had not returned to work by November 20, Buhler called Branham to say that her job would be in jeopardy unless she could produce documents that confirmed her need to be off work. Branham informed Buhler that the wrong doctor had completed the November 14 certification, and that she would provide additional clarification from her primary care physician. However, when no such information was received by Gannett by November 24, the company made the decision to terminate Branhams employment. A termination letter dated November 24, 2006, was sent to Branham by registered mail on Tuesday, November 28; Branham was contacted by phone on that same day to inform her of the firing. That same evening, Gannett received a faxed certification form signed by a nurse practitioner (Seefeldt) which stated that Branham would not return to work until January 1, 2007. Branham ultimately filed a complaint in federal court alleging that Gannett violated the FMLA by interfering with her use of FMLA and by firing her in retaliation for seeking FMLA leave. The district court granted summary judgment to Gannett. The court found that an employer must allow an employee 15 days within which to provide medical certification in support of a leave request under the FMLA; the court further acknowledged that Branham provided a supporting certification on the 15th day after Branhams husband reported that she was sick and planned to see a doctor, but that Branham had been fired prior to the expiration of that 15-day certification period. However, the lower court found that Gannett was entitled to fire Branham on the 11th day of the certification period, once the company had received a negative certification from Dr. Singer, allowing Branham to return to work. The Sixth Circuit reversed the summary judgment for Gannett, finding that Branham was able to show that she was entitled to FMLA leave. The Sixth Circuit found in a case of first impression for that court that an employee is entitled to the full 15-day certification period in order to provide a medical certification supporting the need for FMLA leave. That means that even though Gannett had received information from Dr. Singer that Branhams medical condition did not support the need for leave, Branham was entitled to a full 15 days to seek a certification that actually supported that leave. In most employment-related lawsuits, the judge is the trier of the law and the jury is the trier of the facts. A successful motion for summary judgment can mean the dismissal of a plaintiffs lawsuit on a matter of law. However, the denial of such motion as in this case - simply means that a court has found a disputed material fact which requires review and decision by the jury. Here, the Sixth Circuit determined that the difference in the two certifications the immediate return to work from Dr. Singer, and Nurse Practitioner Seefeldts certification of Branhams ongoing incapacity was the essence of a factual dispute that precludes summary judgment. By not waiting for the entire certification period to expire, Gannett set the stage for this lawsuit, which occurred when the company assumed that the first certification was the only paperwork that they would receive within the allowable 15 day response period. Although neither the FMLA nor its supporting regulations specifically instruct an employer to wait until the full expiration of the 15 day certification period, this case is an example of the result of failing to do so. Importantly, the Sixth Circuit also found that Gannett was not entitled to delay or deny FMLA leave to
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Branham, because there was no evidence that the company formally requested the medical certification in accordance with the FMLA regulations. In fact, the evidence showed that Gannett failed to make a proper request for the information. The companys short term disability form doubled as its FMLA leave form, and failed to include information (required by the FMLA regs) about FMLA certification or the consequences of returning the certification in a timely manner. Therefore, a reasonable jury might find that the 15 day certification period was never triggered. This case is an example of the administrative complexities of the FMLA, and the resulting confusion when an employer is not fully compliant with the law and its regulations. Thorough training of HR and management is critical for full compliance with the Act. Tags: FMLA

Posted on August 23, 2010 by Maria Danaher

Impaired employee may be excused from heightened reporting requirement for FMLA leave.
The 5th U.S. Circuit Court of Appeal has held that an impaired individual may not be required to comply directly with her employers heightened reporting requirements associated with FMLA leave. Saenz v. Harlingen Medical Center, LP, 5th Circ., No. 09-40887, August 2, 2010. In order to take a leave under the Family and Medical Leave Act, an employee must comply with reporting requirements codified in the Act and its regulations. Those regulations include a notice provision that requires the employee to provide information, as soon as practicable, that would allow the employer to recognize that the employee is suffering from a condition that may fit the FMLAs definition of serious medical condition. In addition to the basic reporting requirement, an employer may also require employees to provide information during the leave, in order to allow the company to determine whether each such absence is associated with a serious medial condition. Shauna Saenz was an employee of Harlingen Medical Center (HMC). In 2006, Saenz applied for - and was granted intermittent FMLA leave for a seizure condition from which she suffered. During each of her absences, she complied with an additional requirement instituted by the company through its insurer (Hartford), that she report the reason for her absence within two days of that specific absence. Saenz was warned that her failure to report within two days could cause the loss of her FMLA status. Between July 24 and December 26, 2006, Saenz was absent on nine different occasions, seeking and receiving approval within two days of each absence, consistent with HMCs heightened reporting requirement. On December 25 and 26, Saenz missed work due to seizures, and reported appropriately. However, on December 29-31 and January 3-4, 2007, Saenz again missed work. This time, her absence was due to a psychological condition that ultimately required her to be hospitalized. Saenz mother, Rhonda Galloway, contacted Saenz supervisor and HMCs house supervisor about the situation, letting them know that Saenz would not be reporting to work. Notably, the house supervisor visited Saenz in the emergency room. Saenz subsequently was admitted to a behavioral clinic until January 2, after which she went to Galloways home to recover. Galloway then called Saenz supervisor to report Saenz status and to make HMC aware that Saenz would not be reporting to work. In total, Saenz missed work on December 29-31, and January 3 and 4 due to her illness. On January 9, Saenz called Hartford to report her diagnosis (bipolar disorder and depression) and to ask for

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intermittent leave associated with that condition. Saenz then received a letter dated January 18, 2007 from HMC informing her that her employment was terminated due to non-FMLA approved absences. The letter explained that Saenze should have reported with two days after her release from the hospital on January 2, and that her failure to do so created unexcused absences. Saenz sued HMC, claiming violation of her rights under the FMLA. The district court granted summary judgment in favor of HMC, but that decision was reversed by the Fifth Circuit. The Court reviewed two issues on appeal: first, whether Saenz was required to comply with HMCs internally created heightened FMLA notice requirements, and whether Saenz provided adequate notice of her situation under the basic reporting requirements of the FMLA. First, the Court found that Saenz provided sufficient information for HMC to realize that she was requesting FMLA leave, and did so within two days of her illness. Saenz mother contacted HMC to inform them of the new illness, and an HMC supervisor visited Saenz in the emergency room and saw her condition first-hand. HMC was not left to wonder whether Saenz was suffering from a serious health condition, or whether FMLA might apply. The Court found that because a jury could determine that Saenz through Galloway had complied with HMCs heightened reporting requirement, dismissal of Saenz claim on summary judgment was inappropriate. The Court then went further, and said that even if Saenz complied with HMCs heightened standard, HMC would be entitled to summary judgment if Saenz failed to comply with the actual FMLA reporting requirement. However, because the FMLA requires only that an employee contact the employer to state that leave is needed as soon as practicable under the facts of the particular case, the Court held that Saenz did, in fact, meet this low threshold through Galloways calls to HMC in which she described both Saenz symptoms and the significant treatment that Saenz was receiving. Employers should recognize that while a company is allowed to establish heightened reporting requirements related to FMLA leaves, compliance with those requirements should be determined in light of the specific facts and circumstances of the employees situation. Tags: FMLA, FMLA

Posted on June 21, 2010 by Maria Danaher

FMLA rights regarding childcare may apply without specific legal or biological relationship.
The Family and Medical Leave Act (FMLA) establishes protected leave for specific circumstances, including the birth or placement of a son or daughter, care of a newborn or newly placed son or daughter, and care for a son or daughter with a serious health condition. On June 22, 2010, the Wage and Hour Division of the Department of Labor issued Administrators Interpretation No. 2010-3 in response to requests for guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child.

Under the FMLA, the definition of son or daughter includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. According to the DOL, Congress intended the definition of son or daughter to reflect the reality that many children in the United States today do not live in traditional nuclear families with their biological father and mother. One purpose of the FMLA is to ensure that an employee who has actual day-to-day child-care responsibilities is entitled to leave, even if that employee has no biological or legal relationship to the child. The regulations associated with the FMLA define in loco parentis to include individuals with day-to-day responsibilities to care for and financially support a child. Whether an employee stands in loco parentis to a
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child is a fact issue dependent upon the specifics of the relationship and according to the DOL depends upon a variety of factors, including the age of the child, the amount of support provided, and the extent to which duties commonly associated with parenting are present. The DOLs guidance goes one step further, and states that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. Therefore, an employee who provides day-to-day care for an unmarried partners child or a spouses child from a previous marriage, but does not financially support that child, may still be entitled to FMLA leave to care for the child should that child develop a serious health condition. Further, an employee who will share equally in child care responsibilities with a same sex partner would be entitled to FMLA leave for the birth or placement of that child, even without a biological or specific legal relationship with that child. The DOL points out that Neither the [FMLA] nor the regulations restrict the number of parents a child may have under the FMLA. Therefore, the fact that a child has two biological parents does not prevent a finding that the same child is a son or daughter of an employee who provides day-to-day care or financial support to the child. For example, if the biological parents of a child divorce and remarry, it is possible (under the interpretation of the FMLA set forth in the DOLs opinion letter) that there may be four individuals who may have equal rights to FMLA leave, should the child become seriously ill. Employers should recognize that no specific legal relationship is required to establish in loco parentis status. However, there are limitations on this designation. For instance, an employee who cares for a child (even on a day-to-day basis) while the childs parents are vacationing would not be considered to be acting in loco parentis to that child. However, if an employee intends to assume financial or day-to-day parental responsibility for a child on some continuing basis, and requests FMLA leave for that childs care, the employer should look carefully at the facts before assuming that the employee is not entitled to such leave.

Tags: FMLA

Posted on March 15, 2010 by Maria Danaher

Third Circuit says lay testimony can help to establish "serious health condition" under FMLA.
The Family and Medical Leave Act (FMLA) entitles an eligible employee to 12 weeks of leave, but only if the employee can show that he or she suffers from a serious health condition that makes the employee unable to perform the functions of the position of such employee. The Act defines a serious health condition as an illness or other condition that involves continuing treatment by a health care provider. The regulations related to the FMLA require a showing of at least three days of incapacitation plus treatment by a health care provider, in order to support a claim of serious health condition. However, those regulations do not require or even mention that expert medical evidence is necessary to prove those days of incapacitation, and courts have been left to determine the role that a doctors diagnosis plays in that proof. Recently, the 3d U.S. Circuit Court of Appeals held that a combination of personal and medical testimony regarding the illness of a medical practice receptionist was sufficient to raise a jury issue regarding whether that person suffered from a serious health condition sufficient to support a claim under the FMLA. Schaar v. Lehigh Valley Health Services, Inc., 3d Circ., No. 09-1635, March 11, 2010. Rachael Schaar worked as a medical receptionist for the Lehigh Valley Physicians Business Services (Lehigh Valley) in Bethlehem, Pennsylvania, from December 2002 until her employment was terminated for violation of the groups absence/call-off policy. On Wednesday, September 21, 2005, Schaar was diagnosed by one of

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Lehigh Valleys physicians - with a urinary tract infection, fever, and low back pain. The physician prescribed an antibiotic and an anti-inflammatory, and wrote a note advising Schaars supervisor that Schaars illness would prevent her from working on September 21 and 22. Schaar taped the note to her supervisors door and went home. Consistent with that note, Schaar took September 21 and 22 as paid sick days. She previously had scheduled vacation days for Friday, September 23, and Monday, September 26, and returned to work on September 27, claiming that she had spent the weekend sick in bed, and had felt well enough to get up and around only on Monday. Schaar did not request FMLA leave for her absence, nor did she ask to have her vacation days converted to sick days. Although Schaars supervisor initially said that Schaar could be fired for failing to call off on her two sick days, she subsequently told Schaar that the decision to leave a note in lieu of calling off was not a terminable offense. Six days later, however, Schaar was terminated, and was informed that the termination was based on never calling off from work, along with certain performance issues. Schaar sued Lehigh Valley and its parent corporation, claiming interference with her FMLA rights. In its motion for summary judgment, Lehigh Valley asserted that Schaar has failed to prove that she was incapacitated for three days, as required under the FMLA. The lower court granted that motion, finding that because she had not presented expert medical testimony establishing three days of incapacity, Schaar has failed to prove that she suffered from a serious medical condition. On appeal, the Third Circuit addressed the issue of whether Schaar presented evidence that she was incapacitated for more than three days, and the question of whether she had to establish that incapacitation through medical evidence. Courts have answered those questions in three ways, holding: (1) that the supporting evidence used to establish incapacity has to come exclusively through a medical provider; (2) that lay testimony, standing alone, is sufficient to establish incapacity; and (3) lay testimony can be used to supplement a medical professionals testimony or evidence regarding incapacity. In spite of the fact that district courts within the Third Circuit previously have used the first approach, the Third Circuit has established, through this decision, that lay testimony can create an issue of fact regarding a 3-day incapacitation, so long as medical evidence has been proffered to establish the underlying medical condition. The Court points out that while the subject DOL regulation does not speak specifically to whether medical testimony is required, a related regulation requires the testimony of a health care provider in order to determine when an employee is unable to perform the functions of the position, thereby making medical evidence a necessary element of an employees case. However, because there is no language in the regulations to exclude all lay testimony regarding the length of any incapacitation, the Third Circuit would not categorically exclude such evidence. Therefore, while the Court has rejected the approach taken by the Fifth and Ninth Circuits (which each have held that lay testimony alone is sufficient to create a genuine issue of material fact regarding serious health condition), it has determined that such evidence can be sufficient if it is offered in combination with medical evidence linking incapacitation to the subject health condition. Because of the FMLAs administrative complexities, employers should review requests on a case-by-case basis, including a review of both medical and lay information, before rejecting a claim for FMLA leave. Tags: FMLA

Posted on February 21, 2010 by Maria Danaher

Inconsistent performance appraisal scores may support FMLA interference claim.


In an unpublished opinion, the 6th U.S. Circuit Court of Appeals has held that an employees appraisal score,

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given during a Reduction in Force (RIF) review, that was significantly lower than an annual performance review score given only 20 days earlier might support a jurys finding that the true reason for the employees layoff was her requested FMLA leave. Cutcher v. Kmart Corporation, 6th Circuit, No. 09-1145, February 1, 2010. Susan Cutcher was initially hired by Kmart as a part-time employee in 1984, and eventually moved to a full-time hourly associate (FTHA) position. Kmart regular conducts performance appraisals of its employees on or around the anniversary date of their hiring. Between 2001 and 2003, Cutcher was rated as exceptional by her supervisor. In 2004, Cutchers rating dropped to exceeds expectations which was the second highest possible rating, with a total numerical score of 20 out of 22. On November 15, 2005, Cutcher again was rated as exceeds expectation with a rating of 18 out of 22. In early November 2005, Cutcher submitted FMLA forms to her HR representative, informing the company that she would be off work for six weeks after undergoing surgery. At the same time, Cutcher completed forms for short-term disability leave, and commenced paid leave effective December 5, 2005. On December 21, 2005, the company announced a nation-wide RIF, within which Cutchers location ultimately laid off six FTHAs. The RIF guidelines required each store to complete an Associate Performance Recap form for each FTHA. That form included the same categories as did the annual performance evaluation review, and considered the employees most recent appraisal rating in calculating the employees score for purposes of the RIF. The forms instructions also required an explanation if there was a significant change in the RIF score as compared to the employees annual appraisal. Although Cutchers pre-RIF annual evaluation was enough to avoid layoff, her performance was re-evaluated, and that score placed her close to the bottom of the rankings. On her RIF evaluation, in a comment section net to her name, Cutcher was noted as Poor customer and associate relations. LOA. The stores manager indicated that LOA simply indicated that Cutcher was on a Leave of Absence at the time of the RIF evaluation, and that her layoff would be delayed until her return. Cutcher, in fact, was terminated upon her return from leave on January 23, 2006, and her position ws given to another FTHA who received a higher ranking. Cutcher filed suit in federal court, claiming interference with, and termination in retaliation of, her FMLA leave. Although the district court granted Kmarts motion for summary judgment, the Sixth Circuit reversed that decision, holding that the fact that there had been no prior complaints against Cutcher, and that an LOA note had been written next to her name created issues of material fact for the jury as to the reason for her RIF rating score. The real issue in this case is the lack of documentation for the companys reasons for the RIF ranking. While the company argued that Cutchers performance had been declining, there was no documentation evidencing a prior concern about that performance. While the individual who conducted Cutchers annual review in early November testified that she often scored associates higher on annual appraisals than they deserved because she did not like confrontation, she also admitted that she was not aware of any specific problems with Cutchers performance between the annual evaluation and the RIF ranking. Employers must recognize that, when it comes to performance evaluation, honesty really is the best policy. Had the supervisor been more direct in her evaluation of Cutcher and documented a declining performance, such documentation would have eliminated the basis of Cutchers FMLA claim by supporting the companys reason for the lower RIF ranking. Supervisors and managers should be trained to use performance evaluations as constructive feedback, and not as motivational tools or anticipatory rewards. Tags: FMLA

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Posted on January 31, 2010 by Maria Danaher

FMLA's administrative complexities create challenges for employers


The U.S. District Court for the Middle District of Pennsylvania recently re-visited a case on remand from the Third Circuit, and allowed an insurance company employees claims of FMLA interference and retaliation to go forward. Erdman v. Nationwide Insurance Co., M.D. Pa., No. 1:05-cv-0944, 1/15/10. The case is noteworthy on more than one point: first, the 3d Circuit remanded the case on a finding that the employees hours worked at home might be counted toward the 1250 minimum hours needed to be eligible for FMLA leave; second, that evidence of ongoing antagonism between the company and the employee might form the basis of FMLA retaliation; and finally, that a request for FMLA leave may be viewed as a protected activity under Pennsylvanias Human Relations Act. Nationwide Insurance Company hired Brenda Erdman in 1980. Erdman was a full-time employee until 1998, when she began to work part-time in order to care for her daughter, who was born with Downs Syndrome. In 2002, Erdmans request for a 4-day workweek schedule was granted. However, Erdman regularly worked extra hours from home, for which her supervisor consistently authorized payment, allowing Erdman to exercise comp time based upon those hours. In 2002, Erdman began to report to a new supervisor, and asked that person whether continued comp time would be allowed. Although there was no specific response, the supervisor made no initial objection to Erdmans continued use of comp time. However, in September 2002, that supervisor admonished Erdman on a number of performance issues, and then told her that she could no longer use extra hours as comp time. In February 2003, Nationwide informed Erdman that her part-time position was being eliminated, and offered her a full-time job, which Erdman accepted. In April 2003, Erdman submitted paperwork asking for FMLA leave for the month of August, which she needed to prepare her daughter for school. Nationwide fired Erdman on May 9, 2003, stating that it was doing so for prior workplace behavioral issues. Erdman filed a lawsuit against Nationwide, including claims under the FMLA and of the Pennsylvania Human Relations Act. In dismissing the case, the lower court initially granted summary judgment in favor of the company, holding that Erdman had not worked the necessary 1250 hours to qualify for FMLA leave. Erdman appealed. 1. Hours worked at home might count toward 1250 hour requirement. Last year, the 3d U.S. Circuit Court of Appeals addressed an issue of first impression for that court: whether Erdmans of-site work hours could be counted toward the number of hours needed to qualify for leave under the FMLA. The Court decided that the issue was a question of fact, because the FMLA counts all work hours that an employer knows or has reason to believe are being worked by the employee. The Third Circuit held that a reasonable jury could conclude that Nationwide had constructive notice of the fact that Erdman had worked from home and, therefore, could find that she had worked the requisite number of hours to qualify for FMLA leave. The case was remanded back to the district court following that determination. 2. Ongoing antagonism supports FMLA retaliation claim On remand, the district court specifically discussed Erdmans FMLA retaliation claim, and determined that Erdman had provided sufficient evidence to create an issue of fact as to whether ongoing antagonism including monitoring personal calls, misapplying company policies, and providing inconsistent reasons for the termination - to establish a causal link between her FMLA request and her firing. According to the court, those actions could allow a trier of fact to discredit the companys contention that incidents of inappropriate workplace behavior prompted it to terminate Erdmans employment. 3. FMLA can be protected activity under state law To establish a prima facie case of retaliation under the Pennsylvania Human Relations Act (PHRA), Erdman must show that she engaged in a protected activity for which an adverse action was taken. In this case,

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Erdman claimed that the protected activity was her request for FMLA leave. She pointed out that the PHRA prohibits sex-based discrimination, and one basis of the FMLA as stated by Congress is to expressly delineate how sexual/gender discrimination can occur in caretaker roles and how the purpose of the FMLA is to minimize employment discrimination based on sex. Here, the district court predicted that, although Pennsylvania courts have not yet addressed the issue, the Pennsylvania Supreme Court would find that an FMLA request qualifies as a protected activity under the PHRA, and therefore denied Nationwides motion for summary judgment on the PHRA retaliation claim. This case is one which employers should review and understand before taking an adverse employment action against any employee who is on FMLA leave or who has requested such a leave. While employers are entitled to impose disciplinary actions based upon violation of company policies and procedures, such actions cannot be based upon an employees FMLA leave. Importantly, an employees FMLA-related absences or intermittent-leave schedule does not provide a sufficient legal basis for disciplinary action against that employee. Tags: FMLA

Posted on November 9, 2009 by Maria Danaher

Termination for poor performance discussed prior to FMLA leave does not support retaliation claim.
The Family and Medical Leave Act prohibits employers from discriminating against employees who have taken leave under that Act. However, the 7th U.S. Circuit Court of Appeals has affirmed summary judgment in favor of an employer who terminated an individual for excessive absenteeism and performance issues that developed prior to that employees request for FMLA leave, even though her termination occurred during that protected leave. Long v. Teachers Retirement System of Illinois, 7th Cir., No. 08-3094, Oct. 23, 2009. Julie Stephens Long was employed by the Teachers Retirement System of the State of Illinois (TRS) from 1985 until her termination in 2006. Starting in 2000, Long worked in TRS payroll department, where she had responsibilities that included enrolling members in an electronic fund transfer (EFT) program, entering information into a database, and verifying bank routing and account numbers. She reported directly to TRS Payroll Insurance Manager (Branham). While Longs initial performance in Payroll was good, both her absences and her work errors increased over time. In June of 2005, Long missed 25% of her scheduled work days; this rose to 40% during the following month. In addition, Long failed to train employees from other departments on the EFT process, in spite of multiple directives from Branham to do so. On July 26, 2005, Branham met with Long to inform her that because of her frequent absences, he planned to withdraw his nomination of her for a promotion. In September, Branham traced several errors in the EFT system to Long. He then met with Long to discuss her errors, her failure to conduct the requested training sessions, and the effect of her increased absences on co-worker morale. He summarized those issues in a memo dated September 20, 2005. On September 26, Long applied for FMLA leave for medial epicondylitis (tennis elbow). After the leave was granted, Long informed TRS that her September absences were related to that condition. She then modified her leave request to ask for intermittent leave for treatment of ovarian cysts. She took six days off in October and eight days in November under that leave. However, she also was absent on nine days in December 2005 and five in January 2006 for non-FMLA reasons. Branhams frustration with Long increased to the point where he met with TRS HR manager (Larkin) and a Deputy Director of its Benefits Department (Sherman) and

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recommended that Long be fired. Larkin then undertook a full review of Longs performance evaluations, co-worker and TRS member complaints, and comments from both Branham and Sherman, and then recommended to TRS Executive Director (Bauman) that Longs employment be terminated. Bauman had no knowledge of Longs FMLA leave when he made the final decision to fire her. Long filed suit against TRS, claiming violation of the FMLA. While TRS did not dispute the fact that Long engaged in protected activity when she took the FMLA leave, it argued that its decision to fire her was based on a number of factors, and not on any retaliatory animus. The district court granted summary judgment in favor of TRS, and decision was upheld by the 7th Circuit on appeal. Longs lawsuit centered around the claim that Branham was angry about her absences, and that he unduly influenced the decision to fire her on that basis. However, the Court noted that Long had not applied for leave prior to the documented disciplinary meeting with Branham on September 20, and that Branham already had documented the fact that Longs absences were negatively affecting the performance of her group prior to Longs request for leave. Therefore, any comments by Branham regarding Longs pre-FMLA leave absences could not be used as evidence of FMLA retaliation on Branhams part. Further, the Court pointed to Larkins independent investigation, in which she reviewed not only Branhams comments, but information from others as well. The decision to fire Long ultimately was made by Bauman, who relied on multiple sources of information, and was unaware of Longs FMLA leave. The critical issues in this matter are ones of which employers should be aware: (1) Branhams documentation of his September meeting with Long showed that there were performance concerns prior to Longs request for FMLA leave; (2) the multiple sources of information used in the termination investigation supported TRS argument that Branhams concerns about Long were not the sole basis for TRS decision; and (3) the independent deliberation of the ultimate decision-maker was evidence that Branham was not the deciding factor in the adverse action against Long. Companies that follow this model of documentation/multiple sources of information/independent decision-making are far more likely to be successful in avoiding liability under the FMLA. Tags: FMLA

Posted on November 2, 2009 by Maria Danaher

FMLA amended to expand available time for leave related to family members in the Armed Forces.
On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA), which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA) by expanding both the qualifying exigency leave and military caregiver leave that became effective in January 2008. Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to qualifying exigency leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.

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The new law did not change the length of leave entitlement under the FMLA. A covered employer still must allow an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave. The reasons for which an eligible employee can take qualifying exigency leave also are unchanged. Such leave still can be taken for short-notice deployment, military events, and related activities such as official ceremonies, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events which arise out of the covered military members active duty or call to active duty status. The new amendments expand military caregiver leave in two ways: First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving the medical treatment that triggers the need for military caregiver leave. Therefore, employees who are family members of a current service member or veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take up to six months of caregiver leave, so long as the veteran was a member of the military within five years of receiving such treatment. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave the 12-month period begins when the employee begins using caregiver leave. Second, the new amendment expands the definition of a serious injury or illness for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation of existing or pre-existing injuries to an active duty service member in the Armed Forces. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. For veterans, the definition allows the leave whether the injury or illness manifested itself before or after the Armed Forces member became a veteran. The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA on October 28. It is anticipated that the U.S. Department of Labor will issue guidance to address the changes in the near future. Tags: FMLA, FMLA, USERRA, military leave

Posted on August 31, 2009 by Maria Danaher

Employee must provide information sufficient to trigger notice of need for FMLA leave.
The Family and Medical Leave Act (FMLA) was designed, in large part, to protect the medical needs of employees with serious health conditions. The Department of Labor regulations, which provide guidance to both courts and companies, were revised on January 1, 2009, but continue to require that an employee provide notice of the need for leave associated with a serious medical condition. In a recent case, decided under the old version of the DOL regulation, the 8th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer who had demoted an employee after the employee missed work for a claimed nervous breakdown. Talmadge Scobey v. Nucor Steel-Arkansas, 8th Cir., No. 08-1192, Aug. 25, 2009. In that case, an individual sued his employer for interference with and retaliation for exercise of his FMLA rights, claiming that he was demoted because of his attempt to obtain leave under that Act. Talmadge Scobey began working at Nucor Steel in 1998. Until 2005, Scobey worked as a ladle man in Nucors Hickman, Arkansas facility. The position, which paid over $80,000, was dangerous and demanding, and included handling thousands of pounds of molten steel.

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In February, 2005, Scobey accumulated two unexcused absences. Under the companys attendance policy, an employee could be terminated after four unexcused absences. On Saturday, April 9, 2005, Scobey called his supervisor, ostensibly to ask for time off work for the funeral of his ex-father-in-law, but was unable to reach that supervisor. Scobey did not appear for work on April 10. On April 11, he called and told his supervisor that he had suffered a nervous breakdown, and was through with the company, and then hung up with no further explanation. During that call, Scobeys speech was slurred and his supervisor had the impression that Scobey was intoxicated. Scobey did not show up for work on April 12 or 13. On April 14, he called Blakemore, a supervisor and a friend of Scobeys, and told him that he couldnt remember the past four days and wanted some help. On April 15, Scobey visited a doctor, who diagnosed him with hypertension. On April 20, Scobey was assessed by Nucors EAP provider, at the companys suggestion, and entered an outpatient alcohol treatment program, which he left before completing. On May 20, Scobey met with Nucors plant manager who, rather than terminate Scobeys employment, suspended Scobey for three days and demoted him to an entry-level position. After two weeks in that position, Scobey stopped coming to work, and subsequently sued the company for violation of the FMLA. The district court dismissed both claims on summary judgment, and the dismissal was upheld by the Eighth Circuit on appeal. In order to request leave under the FMLA, an employee does not have to reference the Act. However, under both the old and the recently amended regulations, the employee must do more than merely call in sick to trigger an employers duty to act under the FMLA. An employee has an affirmative duty to indicate both the need for and the reason for the leave, and should let the employer know how long the anticipated leave might be. Scobeys case turned on the issue of whether he provided to Nucor a sufficient and timely notice of a serious health condition for his absences from April 10-13. According to the Eighth Circuit, he did not, and was therefore estopped from claiming violation of the FMLA. The Court made this decision based primarily on the fact that Scobeys notice to Nucor did not include sufficient information to adequately apprise the company that Scobeys condition might be protected by the FMLA. In his April 11 call, he informed his supervisor that he was through with the company notice of quitting, not notice of the need for medical leave. He was intoxicated enough to forget the next four days, and although absences for the treatment of alcoholism are protected under the FMLA, absences caused by the use of alcohol are not. Scobey argued that his inebriated state was a manifestation of underlying depression, which should have been recognized by the company. The Court found, however, that based upon Scobeys apparent intoxication, his prior absences, and his shifting explanations of the reason for his absence, his phone calls were not adequate to apprise Nucor that the FMLA might apply. Having failed to provide sufficient notice to trigger the FMLA, Scobey was unable to support his FMLA claim. However, employers should not read this case as blanket permission to ignore incomplete or non-specific information regarding an employees health condition. Had the facts been slightly different, and had Scobey suffered from depression in the past of which Nucor had been aware, or had Scobey previously provided doctors notes regarding the status of an ongoing depressive episode, a question of fact may have existed regarding whether Scobeys calls constituted adequate notice of the need for FMLA leave. Employers must recognize that these cases are very fact specific, and should review such situations carefully before making a decision to refuse a request for FMLA leave. Tags: FMLA

Posted on August 24, 2009 by Maria Danaher

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Evidence of misconduct discovered during FMLA leave may support employee termination.
An employee who takes leave under the Family and Medical Leave Act (FMLA) is entitled - in most instances to be reinstated to his or her former position, with equivalent pay and benefits, upon expiration of that leave. However, an employee is not entitled to a position or other benefit of employment to which he would not otherwise be entitled simply because he is on FMLA leave. It is on that basis that the 7th U.S. Circuit Court of Appeals upheld the termination of a companys Vice President of Information Technology, even though the termination occurred while that individual was on an FMLA leave. Daugherty v. Wabash Center, Inc., 7th Cir., No. 08-3104, August 14, 2009. During his work history with Wabash, a not-for-profit agency serving individuals with developmental disabilities, Michael Daugherty worked his way from maintenance assistant to VP of the agencys IT group. In 2006, Daugherty became involved in e-mail wars with a number of Wabash employees. During the same time period, he was accused of poor management techniques by the employees of an affiliated company for whom he acted as Chief Information Officer. At a meeting on June 19, Daugherty received a written reprimand for both issues. Daugherty agreed with the substance of the discipline and volunteered to draft a corrective action plan for himself. Daugherty was then told that permission for his upcoming month-long vacation was being revoked because of pressing company business. At that, Daugherty left the meeting and went to visit his doctor. He returned to Wabash to request FMLA leave, providing a note from his doctor that he was to be off work for 2 weeks due to medical illness. Although his FMLA paperwork only stated that he had been placed under a tremendous amount of stress at work, Daugherty was granted two weeks of leave under the FMLA. During Daughertys absence, Wabash discovered that Daugherty had used the companys credit card without authorization to order items that were delivered to his home. In addition, on June 30, Wabashs VP of Finance discovered that certain e-mail correspondence with Daugherty was missing from his computer. Based upon suspicions that Daugherty was remotely accessing (and possibly sabotaging) the companys computer system, outside experts were brought in to investigate. Upon initial investigation, it was determined that Daugherty had failed to back-up servers, and that the companys IT infrastructure (Daughertys responsibility) was deficient. Upon his return on July 3, Daugherty informed the company that he was taking additional medical leave. At that point, management asked him to sign a new corrective action plan and to return his keys and passwords. Daugherty refused, saying that such action would be working, and he was not to be working during leave. He also refused subsequent requests for the keys and information. On July 31, a forensic expert found that Daugherty had deleted over 5,000 files from his computer on June 19, the day of the original disciplinary meeting. On August 9, Wabash terminated Daughertys employment, citing the missing files, violation of purchasing protocols, poor IT practices, failure to turn over keys, and poor management style. Daugherty filed suit in September 2006, claiming that his termination was in violation of the FMLA. The district court granted summary judgment in favor of the company. That decision was affirmed on appeal by the Seventh Circuit. Daugherty argued that Wabash was required to reinstate him after his FMLA leave and that he could not be fired before that reinstatement. However, FMLA only entitles an employee to the same position to which he would have been entitled had he not gone on leave. Because the information discovered by Wabash during Daughertys leave would have justified his termination had the leave not been taken, there was no reason to wait until Daughertys return in order to fire him. Because Daugherty acknowledged the fact that he had violated company policies, there was no disputed fact that his actions factually supported the termination. Once again, a companys complete investigation here, involving an outside consultant - and full and contemporaneous documentation of the results form the basis of a successful legal defense. Employers should

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recognize that in this atmosphere of layoffs, restructurings, and increased litigation, those two factors have continued to be the critical elements of an effective defense to an employees claims of discrimination and illegal treatment. www.employmentlawmatters.net/uploads/file/FMLA - Daugherty.pdf Tags: FMLA

Posted on April 6, 2009 by Maria Danaher

Employee's alteration of healthcare provider's form may invalidate FMLA application.


The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 weeks of leave during a 12-month period under certain circumstances which include a serious medical condition. An employer is allowed, under the regulations associated with the FMLA, to require an employee to document his or her medical condition, and further may require the employee to submit certification of that condition from a health care provider. Recently, the 7th U.S. Circuit Court of Appeals addressed a situation in which an employee altered her health care providers certification to add an impairment that had not been diagnosed by that provider. In that case, the Court upheld the lower courts summary judgment in favor of the employer, finding that the employees alteration invalidated the entire application. Smith v. The Hope School, 7th Cir., No. 08-2176, March 30, 2009. Tanum Smith worked for The Hope School from May 2005 until September 2006. In her position, Smith worked with developmentally challenged children as a one-on-one instructional aide. During 2006, Smith was injured on two separate occasions: first in April, when she was pushed to the ground by a student who then struck and kicked her, and then in June, when she was hit in the mouth, after which Smith suffered neck pain. During the following months, Hope School attempted to work with Smith to place her in a position without student contact, consistent with restrictions instituted by Smiths doctor. On August 22 or 23, however, Smith went the schools HR department to complain that her job assignment was unsafe, and that she was leaving until a safe assignment could be found for her. At that point, Smith was informed that if she failed to appear for work on August 25 as scheduled, her absence would be considered as unexcused, putting her job in jeopardy. However, on August 24, Smith left a phone message, asking for FMLA leave. Smith then was provided with FMLA paperwork, and was told to complete it as soon as possible. Smith took the paperwork to her physician, who completed it that same day, although Smith did not pick up the forms until September 6. At that point, Smith added to her doctors description of her condition the words plus previous depression, in spite of the fact that no doctor had ever diagnosed or treated Smith for that condition. In addition, she submitted a second form that her doctor had not filled out or signed, adding more information about her depression. She then faxed the altered paperwork to the school. Because the school suspected that the certification had been altered, the schools HR department called the physicians office to ask about the form. Upon receiving confirmation that the form had been changed, the school contacted the Department of Labor, who advised them that they could deny Smiths request for leave, which they did. Smith was then disciplined for her absences from work, and ultimately was fired. Smith then filed a lawsuit against Hope School, alleging that the school had interfered with her FMLA rights and had retaliated against her for requesting the leave. The lower court granted summary judgment in favor of the school, finding that Smiths alteration of the providers certification invalidated the FMLA application, and that the schools decision to terminate Smiths employment for unexcused absences was appropriate in that circumstance. That decision was upheld on appeal by the Seventh Circuit.

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FMLA leave may be denied to an employee who attempts to receive such leave fraudulently. The Smith decision is of note, however, because Smith actually had a valid basis for FMLA leave without the plus previous depression language. Therefore, the question reviewed and decided by the Seventh Circuit was whether an employer can deny FMLA leave to which an employee might otherwise be entitled because that person submitted false paperwork. According to the court, it can. While this decision is one of which employers should be aware, employers also should be advised that the court emphasized the limited nature of the ruling, pointing out the especially strong inference that Smith had intentionally submitted false paperwork. The court specifically stated that it did not reach the question of whether more insignificant alterations, such as correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician, would result in a similar ruling. This comment by the court adds a level of difficulty for employers, who now will have to review such circumstances on a case-by-case basis to determine whether each circumstance includes the especially strong inference of falsity evident in Smiths case.

Tags: FMLA

Posted on March 23, 2009 by Maria Danaher

FMLA allows an employer to base termination on performance problems discovered during an employee's leave.
The Family and Medical Leave Act allows individuals to take unpaid leave from work and requires that in most cases, such individuals be returned to their prior position or an equivalent one upon return from the leave. The 7th U.S. Circuit Court of Appeals has clarified that requirement, and has held that when an employer discovers information during an employees FMLA leave that would otherwise form the basis of a valid termination, the FMLA does not act as a bar to such adverse employment action. Cracco v. Vitran Express, Inc., 7th Cir., No 07-3827, March 17, 2009. Kevin Cracco was employed by Vitran, a trucking company, as a Service Center Manager in Markham, Illinois. In October 2006, Cracco requested and was granted a medical leave under the FMLA for a serious health condition that rendered him temporarily unable to work. Vitran then hired temporary employees to cover Craccos responsibilities during his absence. These employees discovered several problems that had been created during Craccos tenure, including undelivered or damaged freight, unresolved customer complaints, and incorrectly handled overtime payments. An investigation was undertaken, which resulted in a finding that on multiple occasions, Cracco had deliberately disguised late and damaged deliveries, and had made other work-related mistakes. On November 13, 2006, the day that Cracco returned from his FMLA leave, Vitran terminated his employment. Cracco filed a lawsuit, alleging that Vitran interfered with his FMLA rights by failing to reinstate him to his position and retaliated against him by firing him. The district court granted summary judgment in favor of Vitran, and the decision was upheld on appeal. In addressing Craccos claims, the Seventh Circuit found that the timing of Craccos termination, standing alone, could not establish a causal link between Craccos FMLA leave and his termination. Instead, the Court held that the fact that the leave permitted the employer to discover the problems can not logically be a bar to the employers ability to fire the deficient employee. Otherwise, an employer could be forced to reinstate and continue to employ a substandard employee, or risk liability under the FMLA.

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Additionally, Cracco argued that his prior positive performance history supported his claim of FMLA violations. The Court disagreed, stating that the existence of such positive reviews did not prohibit Vitran from relying on newly discovered evidence of wrongdoing in its decision to terminate Craccos employment. In fact, because Cracco was unable to show that he met Vitrans legitimate job expectations at the time of his termination, he was unable to set forth a prima facie case of FMLA retaliation, and dismissal of the case was appropriate. This case is important, because employers often feel as if the FMLAs reinstatement requirement insulates employees from discipline or termination upon return from medical leave. This case indicates that an employees right to return to work after FMLA leave is not unlimited. The fact that an FMLA leave permits the employer to discover problems or policy violations does not bar employers ability to fire a deficient employee. Therefore, an employers ability to prove that it would have made the same decision had the employee not exercised his rights under the FMLA can assist in avoiding legal liability under that Act. Tags: FMLA

Posted on February 19, 2009 by Marla Presley

An employee who is unable to return to work after 12 weeks of FMLA leave no longer has the protections of that act
The Family and Medical Leave Act (FMLA) generally provides 12 weeks of unpaid leave during a 12-month period to an eligible employee suffering from a serious health condition. An employee who takes FMLA leave is entitled to be restored to the job he or she held at the time the leave commenced, or to an equivalent position. If, however, the employee is unable to return to work at the end of that 12-week period, he or she is no longer protected by the FMLA. Roberts v. The Health Association, 2d Circ., No. 07-3553-cv, February 3, 2009. Laura Roberts was terminated from her employment with The Health Association (THA) in June 2004. At the time of her termination, Roberts had been out of work for approximately 10 weeks, on an approved FMLA leave. However, at the time of Roberts discharge, her doctor had opined that she would be unable to work until at least July 19, 2004, which would have come after the end of her 12-week leave. Roberts sued her employer, alleging interference with her rights under the FMLA, and claiming retaliation for her exercise of those rights. The district court dismissed the claims, and Roberts appealed to the 2d U.S. Circuit Court of Appeals. The Second Circuit upheld the lower courts decision on the basis that Roberts could not have returned to her original position at the end of her 12-week leave, based upon her doctors opinion. Therefore, the Court held, Roberts was not prejudiced by the early termination. In addition, THA actually paid Roberts for 12 weeks worth of health benefits, which is all to which she would have been entitled had she completed the 12 weeks of leave before being discharged. In addition, Roberts was unable to show that the circumstances surrounding her termination created an inference of retaliation. In fact, the evidence showed that Roberts was made aware that her job was in jeopardy prior to her formal request for FMLA leave. That fact precluded Roberts from successfully alleging that her termination was based upon a protected FMLA leave request. In addition to her FMLA claims, Roberts argued that THA violated the Americans with Disabilities Act when the company fired her because it regarded her as disabled. In order to succeed on that claim, Roberts would have to prove that THA regarded her as substantially limited in a major life activity. Where, as in this case, the major life activity at issue is working, an employee is required to show that the employer believes the individual to be suffering from a condition that prevents her from working in a broad range of jobs, not simply

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the job she previously held. Because Roberts did not provide such evidence regarding THAs actions, the Second Circuit concluded that the lower courts decision to dismiss the ADA claim was correct, as well. The FMLA is one of the most administratively difficult federal anti-discrimination laws, partly because of its complexity, and partly because of its overlap with other federal statutes, as in this case. It is essential that an employer understand both its obligations under the FMLA, and the rights that can be appropriately exercised by an employer in dealing with individual employees with medical impairments and serious health conditions. In this case, the employers record keeping (which documented the early conversations with Roberts informing that her job was in jeopardy), along with the companys willingness to treat Roberts fairly by allowing her to collect the 12 weeks of benefits to which she would have been entitled under the FMLA, supported the courts decision that the companys actions had a legitimate business basis, and did not violate federal law.

Tags: ADA, FMLA, inference of retaliation, regarded as disabled

Posted on February 19, 2009 by Marla Presley

FMLA protects the intention to take leave at a future date.


The Family and Medical leave Act allows eligible employees to take unpaid leave for reasons articulated in that act, including leave of up to 12 workweeks during a 12-month period for the birth or adoption of a child. The act defines eligible employee as one who has been employed for at least 12 months and who has worked for the employer for at least 1250 hours during the previous 12-month period. The FMLA specifically makes it unlawful for an employer to deny the exercise of or the attempt to exercise, any right provided under the FMLA. One federal district court recently addressed the issue of whether an employee is barred from proceeding with an FMLA claim when he had been employed for less than 12 months, but requested FMLA leave that would begin more than a year after his employment had begun. Reynolds v. Inter-Indus. Conf. on Auto Collision Repair, N.D. Ill., No. 08-2115, Jan. 23, 2009. In that case, Christopher Reynolds asked for FMLA leave to care for his newborn son, who was born prematurely and had suffered medical complications. Reynolds began employment with Inter-Industry Conference on Auto Collision Repair (a/k/a/I-CAR) on August 25, 2005. His son was born on August 8, 2006. Reynolds promptly notified his employer of the childs birth and medical problems, and was granted immediate time off work because of the emergency nature of the situation. On or about August 16, Reynolds returned to work and notified the companys HR department that his son would remain hospitalized for three months. While the childs mother would be with the baby during those months, Reynolds asked for his own FMLA leave to begin in November when the baby left the hospital, so that he could assist in his familys care at that time. At the end of the business day, Reynolds received a phone call from his supervisor and the HR director, terminating his employment for reasons, they said, related to his skill set. At the time of his termination, Reynolds had worked for the company for slightly less than one year. Reynolds then filed a lawsuit alleging, in part, that the company violated the FMLA by firing him immediately after his request for leave. The company filed a motion to dismiss that claim, arguing that Reynolds was not an eligible employee (because he had not worked there for 12 months at the time of his request for leave) and, therefore, could not assert a cause of action under the FMLA. The district court denied the motion to dismiss, allowing the case to go forward. It based that decision on the

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provision of the FMLA which states that an employer is entitled to 30 days of notice in instances where a requested leave is foreseeable. According to the court, it would be illogical to interpret the notice requirement in a way that would require employees to disclose requests for leave as a convenience to the employer, but then would allow that same employer to retaliate against the employee, based simply on the fact that the employee was just short of becoming eligible under the FMLA. The courts decision means that under the FMLA, an employer may not terminate an ineligible employee for requesting foreseeable future leave for which that employee will be eligible and to which he or she will be entitled at the time the leave is to begin. While this case is a district court decision, and therefore is appealable, the opinion is instructive and is an indication of the fact that courts are recognizing that one purpose in enacting the FMLA was to balance the demands of the workplace and the needs of families. Employers should understand that in light of this, courts that address this issue in the future are likely to interpret the FMLA consistently with this opinion.

Tags: FMLA, future, intent

Posted on December 30, 2008 by Marla Presley

Employer does not violate FMLA by having daily call-in policy


The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1237, Dec. 22, 2008. Melondy Bacon was employed as a janitor by Hennepin County Medical Center (HCMC). In the summer of 2003, Bacon began periodically to break out in hives while at work. On July 8, 2004, Bacon obtained FMLA paperwork from HCMC, and had the paperwork completed by her physician. According to the doctors report, Bacon needed to take intermittent leave for a chronic skin irritation caused by chemicals at work. While the doctor was unable to specify the duration of the necessary intermittent leave, she predicted that Bacon would need treatment approximately once each month, and that 24 hours would be needed for recovery from such treatment. It is undisputed that Bacons medical documentation neither specified the length of time during which she would need intermittent leave nor provided a return-to-work date. Bacon submitted the paperwork to her supervisor, telling him that she was going to be on extended leave until she could get an appointment with an allergist. During the following month, Bacon called HCMC each day on which she was scheduled to work, reporting that she had not yet seen the allergist, and that she would be absent on that particular day. Her absences were recorded by HCMC as FMLA-related. Bacon called in pursuant to HCMCs policy which requires an employee on indefinite sick leave to call in every day to report an absence. On August 5, 2004, Bacon stopped calling in to report her absences. On August 11, Bacons employment was terminated under a provision of the applicable union contract which states that three consecutive days of absence without notice is considered to be a resignation of employment. Bacon filed for unemployment benefits, explaining that her failure to continue calling in came after she received information on the federal guidelines for FMLA which did not require any call ins. Bacon subsequently filed suit in federal court, claiming that HCMC interfered with her rights under the FMLA by terminating her employment. The district court granted summary judgment in favor of HCMC, and that dismissal was affirmed on appeal to the Eighth Circuit. The Eighth Circuit specifically held that an employer who takes an adverse action against an
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employee who is exercising FMLA rights will not be liable if the employer can prove that it would have made the same decision had the employee not exercised those rights. Employers should recognize that HCMC took two actions that assured its ability to successfully defend against Bacons claim. First, its request for FMLA leave form requires the employee to acknowledge in writing that the HR policies and the prevailing labor agreement (including the call-in procedure) extend to FMLA leave. Second, HCMCs employee handbook includes language that provides that the FMLA does not change the Countys leave of absence procedures and that the Human Resources Rules and/or union contracts continue to apply. Because HCMC had written policies that were consistently enforced, it was therefore able to show that the call-in procedure applied to all extended absences whether or not FMLA-related, and was able to prove definitely that it did not single out Bacon for disciplinary action because she was on FMLA leave. Tags: Bacon, FMLA, Hennepin County Medical Center, call-in

Posted on December 22, 2008 by Marla Presley

Court finds apprentice program constitutes "joint employer" for purposes of FMLA coverage
A judge for the United States District Court for the Western District of Washington recently ruled that a Seattle apprenticeship program was the joint-employer of a plumbing apprentice for purposes of coverage under the FMLA. Frees v. UA Local 32 Plumbers & Steamfitters, W.D. Wash., No. C07-1469 (11/21/08). Frees, a plumbing apprentice, was part of an apprenticeship program operated by the Seattle Area Plumbing and Pipefitting Industry Journeyman and Apprentice Training Committee (JATC). The program required Frees to complete 10,000 hours of reasonably continuous employment and required 216 hours of class time per year. Frees entered the program in 2003 and had worked with 5 different plumbing contractors until his discharge in 2006. In May 2006, Frees received a call from his wifes physician ordering emergency testing for his wife to determine whether she was suffering from multiple sclerosis. Frees informed his instructor, and left class early that day. He also missed three subsequent days of work while attending to his wife. Frees was dismissed from the program that same month for poor attendance. Frees filed suit against JATC and the UA Local 32 Plumbers & Steamfitters, alleging violations of the FMLA. The Union was dismissed on summary judgment on grounds that it was not Frees employer. JATC also moved for summary judgment on the grounds that it was not Frees employer within the meaning of the FMLA. Under DOL regulations, two or more separate corporations or entities may be treated as a single employer for purposes of counting employees if they have a joint employment relationship. JATC contended that the jointemployer doctrine did not apply, because JATC is an educational or academic institution. JATC argued that the FMLA was designed to protect those in the workplace, as opposed to students. JATC argued that the FMLA should not be interpreted to inhibit an educational institution from taking disciplinary action, including dismissal, against students for missing classes, failing to complete assignments or taking examinations due to family or medical needs. The court, in finding against JATC, declined to shield academic institutions, solely based upon their educational designation. The court found that although JATC identifies itself as an educational institution, the standards for apprenticeship fit more appropriately under an employer definition. Under the standards of the

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program, a commercial plumbing apprentice is required to average 38.5 hours per week working, while only attending class approximately 4.2 hours per week. Furthermore, the JATC standards give the JATC coordinator sole authority to make the apprentices assignments, dictate the quantity of assignments, outline wages, and control the amount of time the apprentices remain in a certain rotation. Based upon the factors as a whole, JATC was found to have sufficient control over the apprentices to be considered an employer for purposes of the FMLA. The court denied summary judgment, finding a joint-employment relationship existed. Tags: FMLA, apprenticeship, employer, joint-employer

Posted on November 5, 2008 by Maria Danaher

"Regarded as disabled" claim requires exclusion from range of jobs.


U.S. Circuit Court of Appeals found that an employers failure to rehire an individual after layoff, based on the employees opiate-based prescription medication, did not violate the ADA. However, in an example of the overlap between the ADA and the FMLA, the court allowed the employees FMLA retaliation claim to go forward to trial, based upon a managers statements related to the same employees medical leave. Daugherty v. Sajar Plastics, Inc., No. 05-02787 (6th Circ. Oct. 16, 2008). James Daugherty worked for Sajar Plastics as a maintenance technician from 1991 until his layoff on January 5, 2004. In that capacity, he maintained buildings and equipment, often using hand and power tools, and operated certain heavy machinery including forklifts and overhead cranes. In 2000 and 2001, Daugherty suffered flare ups of a previous back injury. To manage pain associated with those flare ups, Daugherty was prescribed increasing doses of Oxycontin and Duragesic, both opiate-based medications. Daugherty also requested and was granted intermittent FMLA leave during period of increased pain. In November 2003, Daugherty requested a lengthy period of such leave, and provided a doctors note that he would be able to return to work in January 2004. Daugherty claims that Sajars HR Director (Alexander) told him at that time that if he took FMLA leave for that period, there would not be a job waiting for [him] when [he] returned. Alexander disputes that claim. Soon after Daugherty went on leave, Sajar began a round of lay offs. Because Dougherty was the least senior maintenance worker, it was decided that he would be laid off upon his return from leave. However, within a month, Sajar experienced an increase in business and decided to recall Daugherty to work. Alexander made the re-hire contingent upon passing a physical examination conducted by Dr. Altemus, who was routinely used by the company for pre-employment physicals. While Dr. Altemus found Dougherty physically able to perform the functions of the position, he expressed concerns about Doughertys medications, stating that the analgesics may mask the symptoms of re-injury, and may cause am impairment of perception or judgment which might lead to an injury to himself or others. Sajar then called Daugherty and told him that if he could provide documentation regarding a reduction in his medications, the company would consider re-employing him. Dougherty failed to provide that documentation, even after repeated requests, and his employment ultimately was terminated. Daugherty then filed a lawsuit alleging that Sajar regarded him as disabled and that it violated the ADA when it failed to rehire him. He also claimed that his termination was in retaliation for his FMLA leave. The lower court granted Sajars motion for summary judgment on both claims, and Daugherty appealed. On appeal, the Sixth Circuit found that Sajars decision regarding Daughertys employment did not violate the ADA. To support a regarded-as-disabled claim, a plaintiff must show that the employer regards him as unable to

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Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Family ...

http://www.employmentlawmatters.net/articles/fmla/

perform a broad class or range of jobs. Dr. Altemus viewpoint regarding Doughertys medication restricted Dougherty only from the maintenance technician positions at Sajar and, therefore, was not sufficient to support his ADA regarded-as-disabled claim. However, the court reversed the lower courts dismissal of Doughertys FMLA claim. The court held that Dougherty presented direct evidence of discrimination in the form of Alexanders threat that the FMLA leave would affect Doughertys continued employment, and that a jury could find a clear connection between the FMLA leave and Sajars ultimate decision to terminate Doughertys employment. As the number of cases filed under the regarded as provision of the ADA continues to increase, it is imperative for employers to be familiar with the standard of proof required to overcome that claim. In this case, the fact that the company was willing to continue to employ the individual if he was able to work with his physician to decrease the amount of his opiate-based medication indicated a perception on the part of the company that Dougherty was able to be employed in some capacity and, therefore, precluded a claim that the company was excluding Dougherty from a broad range of employment positions. In this case, the companys effort to find a mutually beneficial resolution to the issue - while unsuccessful - had the ultimate effect of helping the company to avoid liability under the ADA.

Tags: ADA, FMLA, regarded as disabled

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