With a little assistance from the U.S. Supreme Court, the State of Maryland avoided potential FMLA liability yesterday in Coleman v. State of Maryland Court of Appeals when the Supremes held that the Family and Medical Leave Act does not allow lawsuits against states by their employees when the suit deals with the "self-care" provisions of the FMLA.  Consequently, Maryland's victory is a win for all states and their subdivisions. 

The Facts

Plaintiff Daniel Coleman worked for the Maryland Court of Appeals.  A good employee by all accounts, Coleman requested FMLA leave as a result of his own alleged serious health condition.   Instead of providing leave, however, the Court of Appeals fired him.  Not surprisingly, Coleman sued his employer.

Maryland asked the trial court to dismiss Coleman's lawsuit because it was barred by Maryland's sovereign immunity.  What is sovereign immunity?  It is a legal privilege under which federal, state and local governments cannot be sued unless they agree to be sued.  (Wouldn't that be a neat trick for the rest of us private citizens to invoke, too?)  In order to work around the privilege of sovereign immunity and allow private lawsuits against state entities, Congress has to show that the self-care provision of the FMLA remedies a pattern of gender-based discrimination (or some other form of legally cognizable discrimination) in states' sick leave policies.  Here, Maryland argued that the self-care provision of the FMLA was passed pursuant to the Commerce Clause of the U.S. Constitution, which cannot be used to bypass the states' sovereign immunity. 

The trial court and appellate court agreed.  And so did the Supreme Court.  For several of the conservative justices, the decision was an easy one, since there arguably is little evidence that Congress passed the self-care provisions of the FMLA to right the wrongs of gender discrimination.  However, in an interesting exchange during oral argument before the high court, Justice Samuel Alito seemed concerned by the apparent unfairness of the result here -- that state employees would have no legal recourse in the event they were denied FMLA leave for self-care or terminated because of the need for leave.  Ultimately, Justice Alito suggested that an employee still could seek an injunction to stop the employer from violating the FMLA, even though the employee could recover no monetary damages. 

Insights for Employers

Keep in mind that this decision only affects employees of the states and their subdivisions.  Therefore, public employers cannot to be sued under the "self-care" provision of the FMLA (so long as they have not voluntarily ceded their sovereign immunity with respect to the FMLA).  Other forms of FMLA leave (e.g., caring for a family member), however, still remain protected. 

Interestingly, the Supreme Court has not ruled on whether states can be sued under the FMLA for "bonding" leave and similar forms of FMLA leave.  Thus, public employers should be cautious when seeking to deny FMLA leave for reasons other than self-care.  

Similarly, it is vital for employers -- public and private alike -- to enforce sick leave and FMLA policies consistently to avoid claims of discrimination.  Failing to do so could subject you to liability under other federal, state or local employment laws.

Take a situation involving Laura Makowski.  Makowski was employed as Marketing Director by SmithAmundsen LLC, a Chicago-based law firm.  In December 2007, during the massive economic downturn, Makowski took maternity leave.  One month later, during a firm retreat in January 2008, the firm's executive team decided to eliminate the positions held by Makowski as well as the firm's IT Director.  The Executive Committee charged Molly O'Gara, Director of Human Resources, with the task of consulting outside counsel on the termination decision.  O'Gara considered herself the "boss" with respect to HR policies and compliance and was regularly consulted on termination decisions. 

According to Makowski, when she returned to pick up her belongings in early February after being terminated, O'Gara met her at the elevator.  Shockingly, Makowski claims that O'Gara told her that she "was let go because of the fact that [Makowski] was pregnant and took medical leave" and that Makowski was one of several at the firm who were let go because they were pregnant or took medical leave.  O'Gara allegedly didn't stop there, suggesting that Makowski should consult with an attorney, since there "might be the possibility of a class action."

Ouch.

You know how the rest of this story goes.  Last week, a federal appellate court in Chicago ruled that Makowski's FMLA interference and retaliation claims (as well as a pregnancy discrimination claim) would not be dismissed, and that a jury must determine whether O'Gara's comments help establish that the firm interfered with Makowski's FMLA leave and ultimately terminated her because of her pregnancy and the use of FMLA leave.  Makowski v. SmithAmundsen (pdf)

Insights for Employers

A few lessons to be learned:

1. Whenever possible, involve senior management in RIFs and other employment terminations.  This should include your senior HR executive.  It is unclear from the case whether O'Gara was involved in the actual decision to terminate (or whether her sole task was obtaining employment counsel's blessing).  However, when senior executives are not consulted on significant business decisions, it can breed resentment.  Resentment manifests itself in a variety of ways, such as a manager who blows off steam about the decision in public or to the affected employee.
2. Loose lips sink ships.  After the debate has ceased and management has made the personnel decision, it is critical that any dissenters support the decision of the whole or that of the decisionmaker.  The public front should be collective, and the message consistent.  Clearly, we don't know all of the facts at issue in Makowski's situation.  However, if O'Gara's comments are true, she obviously allowed her personal opinion to become public.  In turn, it created a tremendous risk of liability for the firm, a decision that now will be placed in the precarious hands of a jury.
3. A no-brainer reminder to HR professionals: Be exceedingly careful when discussing with the employee the reasons for his/her termination, as this conversation will be dissected over and over again and used by the employee's attorney as evidence of alleged discrimination or retaliation.  Whenever possible, seek the guidance of employment counsel in framing the reasons communicated to the employee so that you ultimately reduce the risk of liability.   

The Facts

William Shaffer was the Director of Leadership Communications for the American Medical Association (AMA).  In 2008, when the economic downturn was taking shape, the AMA cut internal budgets.  When initial cutbacks were not enough, the AMA slated various staff positions for elimination.  Shaffer's boss indicated that it would be an "obvious choice" to eliminate the position of another employee in Shaffer's Department because this employee's duties had changed significantly and, in any event, the AMA had stopped work on one of his core campaigns.  When Shaffer's boss was asked on October 28 whether Shaffer should be slated for layoff, he did not believe cutting additional positions was necessary, including Shaffer's position.  The decision appeared to make sense. 

However, the boss suddenly had a changed of heart.  On November 20, Shaffer asked for FMLA leave for knee replacement surgery.  Four to six weeks, to be exact.  By November 30, Shaffer's supervisor changed his tune, recommending now that Shaffer's position be eliminated.  Specifically, he stated in an email to his superiors: "The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact."  Ugh.   

Not surprisingly, Shaffer filed suit shortly after his termination.

The Court's Ruling

In reversing the decision to grant summary judgment to the employer, the Seventh Circuit Court of Appeals in Shaffer v. American Medical Association held that the supervisor’s "11th hour" decision to terminate Shaffer, as well as the inconsistent decisionmaking as documented (e.g., shredded handwritten notes, notes that were dated months before they were written), could have created a "paper trail" that acted as a cover up to unlawful conduct.  As a result, the court decided that a jury should hear Shaffer's FMLA retaliation claim.

Insights for Employers

The advice might seem a bit obvious here, so let me put it succinctly: 1) When you shift course and decide to terminate an individual not initially slated for layoff (and especially after they request protected leave), your thought process and documentation must be precise and well reasoned; and 2) when you actually document, be consistent, thorough and careful.  What clearly was convincing to the Court was the supervisor's email -- a missive that specifically referenced Shaffer’s request for FMLA leave.  Although Shaffer’s request for leave may have had nothing to do with his actual layoff, the content of the email put Shaffer in a good position to argue that a jury should decide whether the need for leave was a motivating factor in the decision to eliminate the position.  This is yet another example of the importance of FMLA training for supervisors and employees who manage employees with medical conditions.

The Wal-Mart decision underscores the heavy burden plaintiffs have when pursuing a case on behalf of others in a class action.  Surely, employers will use the Wal-Mart decision to fight class certification on the basis that the members of the proposed class lacks commonality.  In a post-Wal-Mart era, plaintiffs seeking to advance a class action will be forced to narrow the scope of the class and focus on policies and practices that are specific and clearly establish a discriminatory effect on a class of individuals. 

Might an employer's FMLA practices provide just what a plaintiff needs to withstand the scrutiny of the Supreme Court's exacting standards for class certification?  Unlike many other statutes, the FMLA requires employers to adhere to a multitude of exacting rules, any one of which can trap an employer.  If an employer's FMLA administration runs afoul of the FMLA, it could prove to be the "glue" that the Supreme Court insists is required to tie together the claims of an entire class.  Whereas the Wal-Mart class was rejected because the plaintiffs pointed to rather amorphous, vague policies of discrimination as the basis for their class action, it seems that a class of plaintiffs may have an easier time attacking a specific FMLA policy or practice whose effect creates harm across an entire group of employees.

Two recently filed proposed class actions suggest that at least some plaintiff-side employment attorneys are thinking the same thing: 

• Last week, two former AT&T employees filed a proposed FMLA class action in federal court in San Francisco, alleging that AT&T maintains a "total absence policy," whereby FMLA-protected absences are counted against an employee just like any other absence.  In Beard and Guerrero v. AT&T (pdf), Andre Beard and Gloribel Guerrero allege that AT&T "blacklists" employees when they reach the bottom 30% of the Company's monthly absence calculations.  Thereafter, the plaintiffs claim that employees in this category are harassed, denied promotional opportunities and "targeted" for termination.  Perhaps taking a cue from the Wal-Mart holding, the plaintiffs propose a narrowly-defined class: non-managerial and first-level managers at the Company's call and collection centers who took FMLA leave and were in the bottom 30%. 
• Earlier this year, a proposed class of current and former Sysco employees filed suit in federal court in Chicago, claiming that the Company (through its third-party administrator, Work & Well) has continuously violated the FMLA by insisting that employees provide more medical information than is legally required in the FMLA medical certification and clarification process. In Arango v. Sysco Chicago, Inc. and Work & Well, Inc. (pdf), the plaintiffs claim that Sysco requires its employees to provide medical information such as their prescribed medications, dates of upcoming doctor appointments and detailed information regarding any medical procedures performed.  When employees do not provide the requisite information, the plaintiffs claim that Sysco denies FMLA leave, designates the related absence as unexcused and subjects the employees to a variety of adverse employment actions, up to and typically including termination.  Discovery in this case has just begun.

I share these lawsuits not to suggest that they have any merit or that they are even worthy of class certification.  It's much too early to tell.  Moreover, the employers in these cases have plenty of good arguments to make, and the discovery process will bear that out.  However, these lawsuits simply illustrate the potential for a surge in FMLA class actions as plaintiffs' attorneys get their hands around the Wal-Mart mandate. 

Insights for Employers

So, what is an employer to do?  Several suggestions come to mind:

1. It is imperative that employers consider whether (and how) their FMLA policies and procedures expose them to claims that can be advanced by a group or class of employees.  Strongly consider conducting a comprehensive audit of your entire FMLA administration to ensure your procedures do not violate the regulations and expose potential class claims.  A couple questions might help to guide your analysis:
   • Does your leave request form elicit necessary information without delving beyond the medical condition at issue?
   • Are you requesting more medical information than allowed through the FMLA's medical certification form or the regulations?
   • Are you using the clarification/authentication process as a tool to convince the employee's health care provider that an employee's serious health condition is not valid or not as severe as stated in the medical certification? 
   • Do you require blanket authorization to communicate with the employee's health care provider before medical certification is due or before the employee has the opportunity to cure deficient certification?
   • What medical information do you require upon an employee's return to work?  Does your practice comport with the FMLA's return-to-work rules?
   • As to those employees who have taken FMLA leave, are there a disproportionate number who have been denied promotional opportunities or terminated (for unexplained reasons)?
   • How does your FMLA policy mesh with your attendance and other leave policies?  Are there inconsistencies?
2. Closely analyze your relationship with any third-party administrator that conducts FMLA administration on your behalf.  Do you know how your TPA handles the questions above?  If not, find out.  Keep in mind that the employer ultimately is on the hook for the TPA's FMLA administration.  Thus, the lines of communication between employer and TPA must constantly remain open so that you are able to obtain information, as necessary, and that you are partnering with the TPA on particularly difficult FMLA scenarios.
3. I know I sound like a broken record, but ensure that your managers are properly trained on their responsibilities in FMLA administration.  Although front-line managers may play little to no role in the FMLA process, they are your eyes and ears of potential FMLA abuse.  Conversely, their inappropriate comments or poor handling of an FMLA situation may create significant liability.

In Coleman, the plaintiff was employed by the Maryland Court of Appeals and sought FMLA leave to care for his own serious health condition.  He later claimed his FMLA leave was denied in retaliation for his complaints of wrongdoing in his office.  In a decision that only an FMLA geek like me may find fascinating, the Fourth Circuit Court of Appeals ruled that Congress did not validly strip states of their "immunity" to claims under the FMLA in this specific instance.  As a result, the appellate court upheld the dismissal of the lawsuit.

The cases hinges on the interpretation of the 11th Amendment to the U.S. Constitution, which bars claims in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity.  In order to do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power.  The high court now will make the final decision. 

Public employers should take note of and follow this case, which will be considered by the Court in its next term.  The parties' briefs in the case before the Court can be found at the SCOTUSblog. 

As the folks at the Ohio Employer's Law Blog point out, just days after the Staub decision, the reach of the Supreme Court's ruling already has impacted an FMLA case.  In Blount v. Ohio Bell Telephone Co., the employer maintained a "performance management system" that disciplined employees for failing to meet certain goals.  Managers were given wide discretion to decide whether to issue discipline when an employee did not meet set goals.  In Blount, two employees who had recently taken FMLA leave sued after they were terminated for failing to meet certain goals under the performance management system.  In short, the employees claimed they had been treated differently than other employees who failed to meet the same goals but were not terminated.

In defending the claim, the telephone company claimed that the decision to terminate the employees came from top-level management, not the employee's direct supervisors.  Thus, the employer claimed that any alleged biased from the lower-level managers had no bearing on the ultimate termination decision.  The Court disagreed:

Even if the decision to punish and terminate resided higher in the supervisory chain, . . . the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub (discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

As a result, the Court allowed the employees' FMLA retaliation claims to be considered by a jury.

Insights for Employers

The Blount decision serves as a reminder to employers that employee allegations of illegal bias by managers should be independently investigated, regardless of when and at what point in the discipline process the allegations are raised.  Clearly, a senior-level officer generally can and should rely on the recommendations of lower-level managers when deciding whether to issue discipline or terminate an employee.

However, an employer must tread carefully where there are claims of bias against a manager recommending discipline.  Might the result have been different had the telephone company investigated the claims of bias before terminating the employees?  In doing so, the telephone company could have tested the accuracy of the claims and determined whether the employees' terminations were independently justified and not tainted by any bias.  Such an investigation also would have made for a better record for the company to defend in litigation. 

The decision also is a gentle reminder that training of managers and supervisors is vitally important to combat litigation.  A dollar spent now on training will save a whole lot more later.  Be sure to include some space in your 2011 budget for training.

Vincent Staub worked for Proctor Hospital as an angiography technician until his termination in 2004. During his employment, Staub was a member of the United States Army Reserve, which required him to attend drill one weekend per month and to train full-time for two to three weeks per year. According to Staub, both his supervisor, Janice Mulally, and Mulally’s supervisor, Michael Korenchuk, were hostile to these military obligations. Staub claimed that Mulally was actively seeking to get rid of him, and that Korenchuk was aware of her efforts. In January 2004, Mulally issued a disciplinary directive to Staub that required him to report to Mulally or Korenchuk when he had no patients or when the angio cases were completed. Around April 2004, Korenchuk reported to Linda Buck, Proctor’s vice president of human resources, that Staub left his desk without informing a supervisor in violation of the disciplinary directive. Buck relied on the accusation and, after reviewing Staub’s personnel file, decided to fire him.

Staub filed a grievance challenging his termination, claiming that Mulally fabricated the allegations that had resulted in the disciplinary directive because of her hostility to his military obligations. After discussing the matter with another personnel officer, and without conferring with Mulally, Buck upheld her termination decision.

Staub subsequently sued Proctor Hospital under the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA), claiming that his discharge was motivated by hostility to his military obligations. Staub did not argue that Buck harbored any hostility to his military obligations, but that Mulally and Korenchuk’s hostility influenced Buck’s ultimate employment decision. A jury found in favor of Staub, finding that his military status was a motivating factor in the decision to discharge him. However, the Seventh Circuit Court of Appeals reversed the jury verdict, holding that Staub’s claim could not succeed unless the biased supervisor exercised such a “singular influence” over the decisionmaker that the decision to terminate was the product of “blind reliance.” Because Buck took other factors into account in making the termination decision, the Seventh Circuit held that Proctor Hospital was not liable.

The Court’s Ruling

The Supreme Court unanimously reversed the Seventh Circuit’s decision. In a majority opinion joined by six Justices, Justice Scalia wrote that the Seventh Circuit’s narrow view of the “cat’s paw” theory “would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action.” Thus, the Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

In a separate concurring opinion joined by Justices Alito and Thomas, Justice Alito wrote that an employer should not be held liable “where the officer with formal decision making responsibility, having been alerted to the possibility that adverse information may be tainted, undertakes a reasonable investigation and finds insufficient evidence to dispute the accuracy of that information.” The majority, however, declined to adopt a hard-and-fast rule that the decisionmaker’s independent investigation and rejection of the employee’s allegations of discriminatory animus shielded the employer from liability. While not foreclosing the possibility that such an investigation could shield an employer from liability, the majority observed that even with such an investigation, the biased adverse action could remain a causal factor in the dismissal if the decisionmaker took the biased action into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

Insights for Employers

This case is a clear victory for plaintiffs and plaintiffs’ attorneys, particularly in jurisdictions such as the Seventh Circuit (which encompasses Illinois, Indiana and Wisconsin) that had previously adopted more limited versions of the “cat’s paw” theory. While the case addresses a claim under USERRA, the Court’s reasoning will almost certainly be applied to cases under the FMLA and other federal employment laws. 

In light of the Court’s opinion, it is clear that having HR or a higher-level manager review an employment decision will not necessarily absolve an employer of liability for the bias of a subordinate. Nevertheless, this case makes meaningful review of employment decisions by HR and management even more vital, as the best way to avoid a lawsuit is to ensure that supervisors’ recommendations are well-supported and that questionable actions are reversed or postponed until they can be properly supported. Further, it is now all the more important to ensure that even first-line supervisors receive effective training regarding the FMLA and how to properly document and support employment decisions.

Such was the case for Robert Righi.  In a fantastic opinion for employers, a federal appellate court recently upheld the dismissal of Mr. Righi's FMLA claim because he failed to respond to his supervisor's telephone calls inquiring about his need for a leave of absence.  Righi v. SMC Corporation of America

The Facts

Righi, a salesman for SMC Corp., was the primary caretaker for his mother, who regularly suffered complications from diabetes.  As a result, Righi often took FMLA leave to care for her.  On the occasion at issue, however, he asked for time off after his mother accidentally overdosed on her medication. 

I need the next couple days off to make arrangements in an intermediate care facility for my Mother. . . . I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.

I hope you can understand my situation and approve this emergency time off. I will be very busy the next couple of days . . . so I might be slow getting back to you.

On receipt of the e-mail, Righi's supervisor made numerous attempts to contact Righi over the following seven days (in fact, well over ten times during that period).  On July 19, Righi finally returned his calls, admitting that he turned off his cell phone for a week.  Righi subsequently was terminated for violating SMC's call-in policy.  Righi sued, alleging that SMC interfered with his right to take FMLA leave.

The Ruling

The Court addressed two issues, both of which should be of interest to employers:

1. When an employee states that he does not want to take FMLA leave "at this time," is he affirmatively declining a request for FMLA leave?  Here, the court said no.  Although an employee may waive his FMLA rights if he "clearly expresses to his employer that he does not wish to use the protections of the FMLA," this was not necessarily the case here, since Righi simply stated that he did not want to use FMLA at this time.  The court reasoned that this phrase could be interpreted to imply that Righi might change his mind and opt to exercise his FMLA rights after all.  In these instances, it is necessary for the employer to inquire further "through informal means" to understand the circumstances of leave request and determine whether the FMLA is applicable.  29 C.F.R. 825.303(b).  This is precisely what SMC Corp. did here, a move which ultimately saved the day for the Company. 
2. Given Righi's initial (ambiguous) notice to SMC, does his failure to respond to his supervisor's telephone calls affect his right to FMLA leave?  Yes!  The employee has an obligation to respond to an employer's questions that are designed to determine whether an absence is potentially FMLA-qualifying.  When an employee does not respond, it may result in denial of FMLA protection.  According to the court, Righi's failure to respond to any of his supervisor's calls for more than seven days "doomed" his FMLA claim.

Insights for Employers

Employers can learn a lesson from SMC Corp's response.  When it received a rather ambiguous request for leave, the Company (indeed, a wise supervisor) attempted to communicate with Righi to determine the nature of the need for leave, and the timing and duration of his absence.  In doing so, it met its obligations under the FMLA.  At that point, it was Righi's obligation to provide this additional information.

When the need for leave is unforeseeable, as was the case here, the employee often will not know exactly how much leave he will need.  That's understandable.  However, as the court pointed out, the employee must at least communicate this fact to the employer, along with an estimate of the likely duration of the requested leave.  According to the court, Righi's FMLA claim was "doomed" because he made "no effort whatsoever" to keep SMC apprised of his fluid situation and was absent and out of touch with his supervisor for more than a week. 

The lesson here? Stay in touch, ask questions (especially when the request is vague or ambiguous) and insist that the employee maintain contact with you (pursuant to your call-in policies) to communicate the timing and duration of his or her absence.

The report can be accessed here (pdf).  I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys.  Although my FR colleagues and I played a small role in the publication by summarizing a few cases, all the credit goes to attorneys Jim Paul and Bill Bush, who head up the ABA's FMLA subcommittee.  Enjoy!

The Facts

Plaintiff Perry Picarazzi, a customer service representative for John Crane, Inc.(JCI), had a history of alcoholism, and his alcohol problems clearly led to absenteeism problems in March 2008.  As a result, he was issued a number of "points" under JCI's attendance policies, which led to progressive discipline.  However, JCI failed to issue this course of discipline until the day it also issued a final warning to Picarazzi, which occurred mere days before his termination in late June 2008.

Picarazzi remained in the rehab facility until April 23, at which time he was discharged.  Although the treatment facility released him to work on April 24, his doctor returned him to work with no restrictions nearly a week later, on April 30.  Due to relapses, Picarazzi returned to the rehab facility from April 30 to May 8 and then from June 9-15.  On many days between and after these periods through his termination, Picarazzi was absent from work, apparently as a result of his alcoholism. 

In a nutshell, JCI considered the periods when Picarazzi was in actual treatment as FMLA leave, and as a result, no absentee points were assessed against him.  However, the Company did assess absentee points for some of the days when he claimed to be on FMLA leave but not actually undergoing treatment at a rehab facility. 

The Court's Ruling

As for FMLA leave relating to substance abuse, the FMLA regulations clearly state that:

FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave. 19 C.F.R. § 825.119(a). 

In light of these regulations, JCI argued that it assessed absentee points against Picarazzi on those occasions when he was not enrolled in a rehab program or under his doctor's care.

For a number of reasons, the Court disagreed with JCI.  First, the Court found that a employee need not be enrolled in a rehab institution every day that he was on leave in order to qualify for FMLA leave.  As such, some of the other days Picarazzi was absent may also have been considered FMLA leave.  Second, it held that a jury could find that JCI made representations to Picarazzi that he was on approved FMLA leave through late June, the time period in which he was terminated.  Separately, the Court found that JCI did not warn Picarazzi of the consequences of failing to provide adequate medical certification of his serious health condition.  As a result, the Court determined that a jury should decide whether JCI violated the FMLA.

Insights for Employers

• Although substance abuse itself is not protected by the FMLA, this decision blurs the lines a bit between substance abuse and treatment for that abuse.  In fact, the Court did not seem moved at all that several of Picarazzi's absences seemed to relate to his "abuse" as opposed to his "treatment" of it.  Let this decision be instructive to employers:  When an employee seeks FMLA leave as a result of alcohol or drug related issues, employers should closely analyze all the leave time involved so as to avoid incorrectly designating FMLA leave.
• Employers, sober up!  Miscommunication is a killer.  Clearly, the court refused to dismiss Picarazzi's case at least in part because the employer mistakenly represented to him that "his job would be protected until the 12 week period of leave to which he was entitled under the FMLA expired on June 23, 2008."  Why would the employer communicate such a broad period of leave when the date of return was unknown, and at that point, looked like it may only be four weeks in length?  At a minimum, JCI's communications confused Picarazzi, leading him to believe that he was entitled to more FMLA leave than he may otherwise have been entitled to. 
• Be consistent with discipline.  The Court smelled something funny when JCI failed to notify Picarazzi of multiple disciplinary warnings until days before his termination.  A wise lesson: federal judges don't like when you stack stale discipline at the end of employment and then terminate days later! With respect to discipline, employers all to often get tripped up when they fail to treat an employee on FMLA in the same manner it would treat any other employee.  Timing matters!  When you have a legitimate reason to discipline an employee, whether or not the FMLA is involved, do so in a timely manner.  Employers who wait seem to always pay the price.

The Facts

Regina Terwilliger worked for Howard Memorial Hospital for approximately two years, first in the kitchen and then in housekeeping. In November 2008, Terwilliger submitted a request for FMLA leave because she needed back surgery. Her request was approved and she underwent surgery on January 29, 2009. She was released to return to work without restrictions on February 12, 2009 and returned to work on February 16, 2009, having used eleven weeks of FMLA leave.

During her recovery, Kim Howard, Terwilliger's immediate supervisor, contacted Terwilliger weekly to inquire when she was going to return to work. According to Terwilliger, during one call, she asked Howard if her job was in jeopardy, and Howard replied that she should return to work as soon as possible. Terwilliger asserted that she felt Howard was pressuring her to return to work. She also testified that Gayla Lacefield, the hospital's HR director, discouraged her from using FMLA leave by telling Terwilliger not to tell anyone that she had informed Terwilliger of her FMLA rights.

The Lawsuit

Terwilliger filed suit against the hospital, alleging that she was fired in retaliation for exercising her rights under the FMLA and that the hospital interfered with her FMLA rights by pressuring her to return to work while she was on leave. The hospital moved for summary judgment as to both claims.

The district court rejected Terwilliger's retaliation claim, holding that regardless of whether Terwilliger actually stole anything from Hansen's desk, her supervisor reasonably believed that she attempted to do so, and Terwilliger failed to show that the stated reason for her termination was a pretext for retaliation.

With respect to Terwilliger's interference claim, the hospital argued that Terwilliger was never denied any benefits to which she was entitled under the FMLA, as she returned to work only after her doctor released her to work without any restrictions. The court rejected this argument, holding that Terwilliger "had a right not to be discouraged from taking FMLA leave." In light of Terwilliger's testimony, the court found that "a reasonable jury could conclude that Defendants interfered with Plaintiff's exercise of her FMLA rights by discouraging or chilling her exercise of those rights."

Insights for Employers

The court's decision in this case is obviously troubling for employers who need to follow up with employees on FMLA leave. The FMLA rules specifically authorize employers to require employees on FMLA leave to report periodically on their status and intent to return to work. However, the ruling in Terwilliger seems to suggest that requiring such reports may constitute "interference" if the employee merely feels "discouraged" from taking FMLA leave. Unfortunately the court's decision does not grapple with these issues.

Employers can, however, take some steps to reduce the risk of an FMLA interference claim like Terwilliger's:

• Make sure that all employees receive your FMLA policy and are advised of their FMLA rights as required by the regulations.
• Ensure that your FMLA policy and notices specifically inform employees that they will be required to provide regular status reports while on FMLA leave.
• Tailor the frequency of these status reports to an employee's actual situation. While weekly or even more frequent reports may be appropriate in some cases, in others it may be sufficient to communicate with the employee every other week or even less frequently.
• Most importantly, train any management personnel who will be communicating with employees on FMLA leave to ensure that they do not improperly pressure employees or suggest that an employee's job may be in jeopardy if he or she remains out on FMLA leave. Consider having HR personnel, rather than supervisors, conduct these communications.

The Decision

Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless ("NAS"). In February 2003, the EEOC notified NAS that Regalado had filed a charge alleging sex discrimination. NAS fired Thompson three weeks later. Thompson then filed his own EEOC charge and later filed suit in U.S. District Court, alleging that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court dismissed the case, holding that "Title VII does not permit third-party retaliation claims." Thompson appealed. A three-judge panel of the Sixth Circuit Court of Appeals reversed the District Court, but after rehearing the full court voted to affirm the District Court's ruling by a vote of 10 to 6. The majority reasoned that Thompson could not sue for retaliation because he did not engage in any activity protected by Title VII. Thompson then appealed to the Supreme Court.

In an 8-0 decision (Justice Kagan did not participate), the Supreme Court reversed the Sixth Circuit's ruling. In an opinion by Justice Scalia, the Court observed that Title VII's anti-retaliation provision is broader than the statute's substantive anti-discrimination provisions. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin "with respect to ... compensation, terms, conditions, or privileges of employment" and discriminatory practices that would "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee." In contrast, the anti-retaliation provision prohibits an employer from "discriminating against any of his employees" for engaging in protected conduct, without further specifying what acts are prohibited.

While the Court acknowledged that its ruling could expose employers to claims any time they fire an employee who has some connection to another employee who complained of discrimination, it provided almost no guidance as to the sorts of relationships could give rise to a third-party reprisal claim:

We expect that firing a close family member will almost always meet the Burlington standard, and inflicting amilder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U. S., at 69, “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutorytext and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules.

Retaliation Under the FMLA

The FMLA makes it unlawful for any employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise" any right under the FMLA, or to" discharge or in any other manner discriminate against any individual for opposing" any violation of the FMLA. In light of this language, it seems likely that plaintiffs' attorneys and the Department of Labor will seek to apply the Court's logic in Thompson to third-party reprisal claims under the FMLA. 

What does this mean for employers? When deciding whether to terminate or take other adverse action against an employee, it may not be enough to consider whether that employee has recently exercised FMLA rights or engaged in other activities protected by state or federal law. Now, the employer must consider whether the employee has some significant connection to any other employee who engaged in such protected activities. For example, is the employee married to, dating, or good friends with another employee who recently requested FMLA leave or filed a DOL complaint? If so, additional caution may be warranted. 

Facts:

Terry Degraw worked for Exide Technologies as a senior material handler at its plant in Salina, Kansas. According to a written job description, his job involved manually handling batteries weighing from 5 to 80 pounds, occasionally lifting (with assistance) batteries weighing from 80 to 120 pounds, moving and carrying pallets weighing up to 40 pounds, and continuous standing, walking, or riding a truck during a 12-hour shift. 

Degraw had a long history of back pain and injuries. As a result of continuing back problems, Degraw sought and was granted FMLA leave beginning in June 2006. He eventually exhausted his FMLA leave, and was granted additional leave while he underwent further treatment. On November 27, 2006, Degraw's chiropractor, Dr. Eisenhauer, released him to return to work. However, on December 7, 2006, Degraw saw Dr. Hanson, a physician under contract with Exide to perform examinations and determine whether employees on medical leave can return to work. Dr. Hanson had previously examined Degraw on several occasions. Dr. Hanson ordered an MRI. After reviewing the MRI results, Dr. Hanson recommended that Degraw avoid repetitive bending, stooping, lifting, twisting, climbing, and lifting more than 20 pounds. He noted that these restrictions were not consistent with Degraw's job as a material handler. 

On December 21, 2006, Degraw met with Exide's human resources manager and environmental health and safety supervisor. During the meeting, Degraw said he felt fine, could "bench press 400 pounds" and do other heavy lifting. However, they determined that Degraw could not safely perform any available jobs at the Salina plant. Exide terminated Degraw's employment on January 23, 2007.

The Lawsuit

Degraw filed suit against Exide in U.S. District Court. In addition to claims of retaliatory discharge under state law, Degraw alleged that Exide fired him in retaliation for exercising his FMLA rights, and that it violated the FMLA by forcing him to take unnecessary medical leave and failing to reinstate him following his leave. 

As to his retaliation claim, Degraw argued that Exide's assertion that it fired him because of his back condition was sufficient to establish retaliation under the FMLA. The Court rejected this argument, noting that Exide admitted only that it fired Degraw because it believed his back condition disqualified him from performing his job - not because it caused him to take FMLA leave. 

Degraw also argued that Exide improperly relied upon the report of its own doctor, Dr. Hanson, rather than the release provided by his chiropractor, Dr. Eisenhauer. Among other things, Degraw noted that Dr. Hanson did not examine him in December 2006. The Court rejected this argument, noting that Dr. Hanson reviewed Degraw's MRI, and was familiar with his medical history, work history, and the job requirements for his position. The Court also noted that there was no evidence for Degraw's contention that Dr. Hanson issued his recommendation on instructions from Exide.

The Court likewise rejected Degraw's claim that Exide interfered with his FMLA rights. As to his assertion that the company unlawfully forced him to use FMLA leave, the Court noted that an employee who is forced to involuntarily take FMLA leave for non-FMLA qualifying reasons, and later denied legitimate FMLA leave because leave has been exhausted, may have a claim under the FMLA. However, because Degraw was never denied requested FMLA leave, the Court held that he could not maintain this type of claim. The Court also ruled against Degraw on his claim that Exide unlawfully failed to reinstate him following FMLA leave, noting that his right to reinstatement expired when his leave extended beyond the 12 weeks allowed by teh FMLA. 

Insights for Employers

1. As a general matter, the FMLA does not require an employer to reinstate an employee who is not able to perform the essential functions of his or her job. 
2. Even if an employee has a release from his or her own physician, nothing in the FMLA prohibits an employer from requiring an employee to visit its own doctor, at its own expense, to confirm the employee's ability to work. (For more on this, see this FMLA FAQ.)
3. Employers should exercise caution when faced with conflicting doctors' reports regarding an employee's ability to work. Because his primary claim was for FMLA retaliation, Degraw's case focused not on the underlying factual question of whether Degraw could work, but on whether Exide genuinely believed that he could not. However, if Degraw had sought to return before exhausting his FMLA leave, his ability to work, not Exide's belief, would have been the central focus. In that case, the conflicting medical testimony could have been enough to allow him to take his case to a jury. 

Sally Kinney worked as a cashier at a Holiday gas station. Kinney had been in and out of treatment for kidney cancer since 1997. She took unpaid FMLA leave in May 2005 and again in 2006. In February 2007, Kinney began chemotherapy. On March 13, 2007, Kinney was scheduled to work from 5:00 a.m. to 10:00 p.m. She claims that she was feeling tired and sick and "did not want to be there that day." Nevertheless, she went to work. Upon arrival, she told her manager, Luisa Nadore, that she wasn't feeling good and wanted to go home. She asked Nadore if she could find someone else to come in. Nadore said she would try. After that, neither Nadore nor Kinney brought up the issue of whether Kinney would finish working that day. 

On the same day, Holiday sent a secret shopper to the store to check compliance with the company's tobacco sales policy. Kinney violated company policy by failing to card the secret shopper. According to Holiday, this was Kinney's second tobacco compliance violation within a year. Kinney's employment was terminated on March 16, 2007. 

The Lawsuit:

Kinney filed suit in federal district court, alleging that Holiday violated the FMLA by denying her request for medical leave and that it interfered with her right to seek leave under the FMLA. The district court granted Holiday's motion for summary judgment, finding that Kinney's statement that she was not feeling good and wanted to go home was not sufficient notice of her need for FMLA leave. The court further rejected Kinney's argument that Holiday interfered with her FMLA rights by not immediately allowing her to leave work upon request, noting that "[t]he statute cannot possibly require what Kinney says it does, which is that an employer must decide within hours or minutes whether an employee qualifies for leave under the FMLA."

Kinney appealed to the 9th Circuit Court of Appeals. The 9th Circuit affirmed the district court's ruling with respect to Kinney's claim that Holiday violated the FMLA by denying her request for leave on March 13, 2007. The court noted that Kinney "conditioned her request on her manager's finding a replacement worker, which her manager apparently did not or could not do." Further, the court found that even if Kinney's request had been unconditional, Kinney failed to adequately explain the reason she needed leave in a manner that would put Holiday on notice that her leave might qualify as FMLA. 

However, the 9th Circuit found that the district court erred in failing to consider whether Kinney's prior and prospective FMLA leaves played a role in Holiday's decision to terminate her employment. According to the Court, Kinney had a valid FMLA termination claim if she could "show that Holiday used her 2005 and 2006 FMLA-covered absences, in conjunction with its awareness that her illness might require more medical leave in the future, as a "negative factor" in its decision to fire her." 

The court went on to hold that Kinney presented sufficient evidence that her FMLA leave was a factor in her termination based upon the following factors:

• Holiday fired Kinney shortly after her cancer's recurrence; 
• Holiday managers involved in the termination decision were aware of her cancer;
• The same managers discussed whether Kinney had taken FMLA leave shortly before she was terminated.

Further, while the court acknowledged that Holiday claimed to have fired Kinney for failing to card a customer purchasing tobacco, it found that there was "conflicting evidence as to whether Kinney's first tobacco-sale violation occurred at all," which could only be resolved by a jury at trial.

Insights for Employers:

• While the 9th Circuit decision does not specify what "conflicting evidence" existed as to Kinney's first violation of the tobacco sale policy, employers should keep in mind that if a termination is based in part upon prior misconduct that cannot be clearly proven, this could make it difficult to defeat a wrongful discharge claim before going to a jury trial. 
• The court's analysis of Kinney's leave request is helpful to employers. If an employee simply says she is feeling "ill" without further information, that is not sufficient notice that the employee needs FMLA leave. 
• On the other hand, if the employee had mentioned her cancer treatment and stated that she was unable to work due to side effects of chemotherapy, the proper response would likely have been to permit her to go home, and then to follow up by presenting her with the required FMLA notices and requesting medical certification. 

Amy Ritenour worked for the Tennessee Department of Human Services, initially as an interim employee and subsequently as a full-time clerk. Ritenour was a mother of three children, all with special needs. Under DHS policy, employees were required to personally contact her supervisor each day that she was absent to explain the reason for her absence. Employees who failed to do so for three consecutive work days were subject to termination for job abandonment. 

By mid-August 2008, Ritenour had exhausted all of her annual sick leave. One of her children's conditions worsened, such that she felt that she needed to stay home with him. While Ritenour claimed that she informed all of the supervisors in her chain in command  about her children's conditions and about her specific need for leave in September 2008, DHS disputed whether Ritenour requested unpaid FMLA leave to care for her son.

What was not disputed, however, is that Ritenour was absent on September 22, 23, 24 and 25, 2008, and that she did not contact her supervisor on those dates as required by DHS's general policy on absenteeism. Consequently, DHS terminated Ritenour's employment for job abandonment effective September 25, 2008. 

The Lawsuit

Ritenour filed suit in federal district court, claiming that she was entitled to FMLA leave for her absences in September 2008, and that DHS violated the FMLA by firing her for those absences. DHS filed a motion for summary judgment. Granting that motion, the court noted that Ritenour very well might have been entitled to take FMLA leave for her absences on September 22, 23, 24 and 25. However, it found that DHS was within its rights to terminate her employment, because even if her leave qualified as FMLA leave, Ritenour was still required to comply with DHS's "usual and customary" procedures for reporting absences. DHS terminated Ritenour's employment, according to the court, not because she used FMLA leave, but because she violated established policy. 

Insights for Employers

1. This case provides a clear example of why it pays to have clear, written absence reporting policies. When an employee requests leave, it is almost always a good idea to remind them of the applicable policies in writing, to avoid any later claim that they were unaware of the requirements. 
2. Consistent enforcement is also important. This case could well have had a different result if Ritenour had been able to show that DHS only selectively enforced its absence reporting and job abandonment policies. 
3. Remember that the FMLA rules require employers to make exceptions to their policies for "unusual circumstances" that prevent an employee from reporting an absence in the usual manner. Consequently, before terminating an employee, it is important to consider whether any such exception might be warranted.

Unfortunately, there is no clear rule as to when an employer is a "successor in interest" to an employee's former employer. Instead, the FMLA regulations set out eight factors to be considered:

1. Substantial continuity of the same business operations;
2. Use of the same plant;
3. Continuity of the workforce;
4. Similarity of jobs and working conditions; 
5. Similarity of supervisory personnel;
6. Similarity in machinery, equipment, and production methods;
7. Similarity of products or services; and
8. The ability of the predecessor to provide relief. 

No one of the above factors are conclusive. Rather, the rules specify that "the entire circumstances are to be viewed in their totality." 

Muddying the waters further, the 9th Circuit explained in Sullivan that these factors are only part of an even broader inquiry. The court adopted the following language from an earlier 6th Circuit decision: 

[T]he eight factors are "not in themselves the test for successor liability." Rather they are factors in an overarching, three-part test considering the equities of imposing a particular legal obligation on a successor: (1) the interests of the plaintiff-employee, (2) the interests of the defendant-employer, and (3) the federal policy goals of the statute.

Obviously this analysis is not particularly helpful for an employer trying to determine what if any obligations it may have under the FMLA. As a practical matter, the best course for employers will likely be to focus on the eight factors set out in the FMLA rules. The greater the similarities between the former employer's operations and those of the new employer, the greater the risk of FMLA liability, and the stronger the case for treating employees who worked for the former owner as if they were covered by the FMLA. Don't assume, however, that just because an employee started with your organization less than 12 months ago that he or she is not entitled to FMLA leave.

In a refreshing decision, a federal district court in Minnesota recently rejected an FMLA lawsuit by an employee who said he needed to be absent because he was "feeling ill ... tired, lethargic, fatigue-ish," and "needed a few days to recuperate," but who then failed to follow his employer's absence reporting policy.  To v US Bancorp.pdf

Jordan To worked for U.S. Bank as a Senior Research Clerk. According to to the bank's attendance policy, To was required to report any absences directly to his manager or supervisor. Under the bank's job abandonment policy, employees who are absent for two consecutive work days and who fail to report their absences as required were subject to termination. 

In October 2007, To enlisted in the Minnesota National Guard. In early 2008, he was ordered to attend National Guard training in Georgia. To's training was originally scheduled for April 20 to July 10. It was later extended to July 24 and then August 1. On July 29, To sent an e-mail to U.S. Bank stating that he was not sure when he would be released from his training. Later, on August 4, To participated in a conference call with U.S. Bank management. He stated that he "was feeling ill, [he] was feeling tired, lethargic, fatigue-ish, and [he] wouldn't be able to return to work that day, and [he] needed a few days to recuperate." To was advised that he would need to obtain a doctor's note to return to work. 

From August 5 to August 8, To called in each day and left a voice message stating that he was not feeling well and would not be at work. On August 6, To visited a doctor, who provided him a "Return to Work Slip" stating that his absences were due to an "illness," and that he would be absent from August 4 to August 11. The slip was faxed to To's supervisor. 

To did not return to work on August 11. His doctor faxed a second "Return to Work" slip to his supervisor stating that To's absence was due to "illness" and that To would return to work on Monday , August 18. On August 14, To advised Bancorp that he was "still feeling the same symptoms, getting better, trying to get better," and that he would "hopefully" return by August 18, but that he was not going to make it he would have his doctor send another notice. 

To failed to return on August 18, 19, 20 or 21. He did not call or contact anyone at U.S. Bank. He testified that he contacted his doctor's office on August 15 to complain of the same symptoms, and was told that they would fax a new Return to Work slip requesting additional time off until Monday, August 25. Although the doctor did fill out a slip indicating that To required time off due to "pneumonia," U.S. Bank employees testified that they did not receive the note. 

After To failed to report for work on August 20, U.S. Bank decided to terminate his employment under the job abandonment policy. On August 21, they sent To a letter notifying him that his employment was terminated due to job abandonment.

On August 25, To spoke by telephone with HR Generalist Karen Dahlstrom. He explained that his doctor had faxed a notice on August 15 excusing his absence for the following week. Dahlstrom told To that she had not received the fax, but that U.S. Bank would reevaluate the termination decision if he provided her a copy. To did not do so. Instead, he sent Dahlstrom a new Return to Work Slip dated August 26, estimating that he would return to work on September 15. Because To failed to provide the August 15 Return to Work Slip, Dahlstrom decided to allow his termination to stand.

The Lawsuit

To filed suit against U.S. Bank under the FMLA and the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). The bank moved for summary judgment on both claims. 

As to To's FMLA claim, the court first considered whether To presented sufficient evidence to establish that the August 15 Return to Work slip was faxed to U.S. Bank. The court noted that, generally, when evidence establishes that a fax has been sent, a jury can reasonably infer that the fact was received. However, it found that To failed to present sufficient evidence to show that the fact was in fact sent to U.S. Bank. 

Looking to the merits of To's FMLA claim, the court noted that the only reason for his absences that To ever communicated to U.S. Bank was that he was "feeling ill ... tired, lethargic, fatigue-ish" and "needed a few days to recuperate." While his doctor provided the bank with notes stating that he was absent due to "illness," they did not specify the illness. However, despite this lack of specificity, the court found that testimony from a manager that she considered whether the FMLA applied to To's leave could be enough to allow a reasonable jury to find that To gave adequate notice of a serious health condition. 

To's claim failed, however, because To violated U.S. Bank's absence reporting policies by failing to report his absences from August 18 forward to his manager or supervisor. To argued that his failure was excused by "extenuating circumstances," in that his managers knew he was returning from military leave, was ill, had expressed his desire to keep his job, and had provided two doctor's notes seeking time off. Those "extenuating circumstances," however, were not relevant, because they did not prevent To from complying with U.S. Bank's absence reporting policy. Consequently, U.S. Bank had a valid reason for terminating To's employment. 

Insights for Employers

1. The court's ruling on the notice issue in this case may not be uniformly applied elsewhere. From the facts described, it seems that one could conclude that the bank was on notice that To had some type of medical condition for which he had seen a doctor at least twice within thirty days and that incapacitated him for more than three consecutive calendar days. Even if the condition was not specified, a different court (this one, for example,) could have found this information sufficient to trigger the company's obligation to seek further information in the form of a medical certification. 
2. U.S. Bank won this case because it had a clear policy and procedure for reporting absences, which To violated. However, had the policy been less clear, or had To presented evidence of inconsistent enforcement, the result could have been very different. The lesson: make your attendance policies clear, and enforce them consistently. 

Deborah Branham worked for The Dickson Herald, owned by Gannett. On November 7, 2006, Branham called her supervisor and advised that she would not be in because her son was ill. The next day, she sent an e-mail to her supervisor, Tracy Buhler, stating that her son was still sick and that she would again be absent. On November 9 and 10, she left voice messages for Buhler stating that she was sick and would be absent.

The following Monday, Branham's husband left a message for Buhler stating that Branham was still sick and that he was taking her to the doctor. Branham was examined by Dr. Singer, who found her exam to be "normal" and expected her to return to full work duty the following day, November 14. Branham called Buhler later that day and told her that the doctor had released her to come to work the following day. She also told Buhler that she still was not feeling well, and would need to be absent to attend other doctors' appointments during November and December. Buhler asked her to come into the office to fill out a short-term disability form and "see if she qualified for anything."

On November 14, Branham did not report to work, but went to the office late at night to complete an STD / FMLA form and fill out a medical certification form. Buhler faxed the certification form to Dr. Singer's office. On November 17, Dr. Singer faxed the completed certification form back to Buhler. On the form, the doctor indicated that Branham's condition began on November 10, that she could perform her full duties as of November 14, and that she did not require intermittent leave. 

Branham remained absent through the Thanksgiving holiday. Although both her supervisor and HR advised her that she needed to provide a medical certification to support her absences, she did not do so. Branham did tell her supervisor that another doctor, Dr. Peters, should have filled out the form. However, the company asked both Dr. Singer and Dr. Peters to review the certification form for accuracy, and was advised that Dr. Peters had not seen Branham and would not fill out a certification for her. 

On November 24, the company decided to terminate Branham's employment. A termination letter was sent to her the following Monday. At 6:00 p.m. on the following day, November 28, a nurse practitioner who had previously seen Branham sent the company a medical certification stating that Branham had an illness that began on May 6, and that she would not be able to return to work until January 1, 2007. 

The Lawsuit

Branham filed suit alleging that Gannett interfered with her FMLA rights and terminated her employment in retaliation for using FMLA leave. The district court granted summary judgment to Gannett, finding that Gannett was entitled to deny her FMLA leave based upon the "negative certification" from Dr. Singer, indicating that she was not incapacitated. Branham appealed.

The Sixth Circuit Court of Appeals reversed the ruling and remanded the case to the district court for trial. The Court of Appeals held that Gannett could not rely upon Branham's failure to return a medical certification supporting her need for FMLA leave because it never properly triggered her duty to provide a medical certification in the first place. While the district court had found that Branham's supervisor orally requested a certification from her on November 13, the court of appeals held that Gannett failed to make the request in writing, as it was required to do under the applicable FMLA rules. Consequently, it could not rely upon Branham's failure to provide a medical certification as a basis for terminating her employment. 

Insights for Employers

1. As we stressed in our most recent podcast, whenever an employee seeks FMLA leave for his or her own serious health condition or to care for a family member with a serious health condition, the best practice is to always ask the employee for a medical certification. As this case makes clear, that request needs to be made in writing, and the employee must be notified of the possible consequences of failing to provide a certification. Using the proper eligibility notice form and having a complete and up-to-date FMLA policy can go a long way toward eliminating the risk of lawsuits such as this one.
2. Before terminating an employee who fails to return to work despite a "negative certification" confirming that he or she is not incapacitated, employers should carefully review all of the relevant facts and circumstances to ensure that the employee has received all of the appropriate FMLA notices and had an adequate chance to provide a proper medical certification. It is far better to delay a termination by a few days than to spend the next several years defending a lawsuit. 

Murphy and her husband both began employment with FedEx in 2006, when FedEx acquired their previous employer. In August 2006, Murphy's husband was hospitalized. He sought and was granted FMLA leave. Murphy also sought FMLA leave to care for her husband. Her immediate supervisor, Jeff Karnes, referred Murphy to the company's HR department. Per HR's instructions Murphy sought and obtained a medical certification from her husband's doctor confirming his need for leave. On August 31, 2006, FedEx granted Murphy leave to care for her husband. 

On September 7, 2006, Murphy's husband died. The same day, Murphy called Karnes, told him of the death, and asked about employee benefits related to funeral and burial expenses. Murphy was noticeably distraught, so Karnes offered to get her the information she needed. Murphy then took three days of bereavement leave. 

On September 11, Karnes contacted Murphy. He told her that her FMLA leave ended on September 7 and asked her how much more time she needed before returning to work. She said that she needed thirty days to "take care of things." Karnes told her "okay, cool, not a problem, I'll let HR know." He did not say whether Murphy needed approval from HR to take this leave. She did not seek any additional approval. Murphy later testified that she would have sought medical certification has she not believed that Karnes had approved her leave request. While she testified that at the time she was still crying constantly, could not sleep and had difficulty functioning, she did not tell Karnes or anyone else at FedEx about these symptoms. 

On September 12, Karnes contacted an HR representative to inform her that Murphy had requested thirty days' leave to "put her affairs in order." HR denied that request. On September 15, Karnes called Murphy to inform her that FedEx had decided to terminate her employment.

The Lawsuit

Murphy predictably filed suit against FedEx, alleging among other things that the company interfered with her rights under the FMLA by denying her leave and terminating her employment. The case was tried to a jury. The court instructed the jury that it must find for Murphy if:

(1) Murphy was employed by FedEx;

(2) Murphy requested thirty days' leave from FedEx;

(3) FedEx represented to Murphy that it approved the request for leave, with reason to believe that Murphy would rely upon FedEx's representation; and

(4) Murphy reasonably relied upon FedEx's representation to her detriment.

The jury returned a verdict for Murphy. FedEx filed a motion for judgment as a matter of law or for a new trial, arguing that the court had erroneously failed to instruct the jury to find in favor of FedEx unless the jury found that Murphy had placed FedEx on notice that she may have needed FMLA leave, and that she actually suffered from an FMLA-qualifying serious health condition. The court denied the motion, and FedEx appealed to the 8th Circuit. 

On appeal, the 8th Circuit agreed with FedEx that the district court erred, finding that before Murphy could invoke her rights under the FMLA, it was necessary for her to demonstrate that she put FedEx on notice that she needed leave for an FMLA-qualifying reason. Accordingly, the court found that FedEx is entitled to a new trial. However, it rejected FedEx's argument that it was entitled to judgment as a matter of law, holding that Murphy presented sufficient evidence from which a reasonable jury could conclude that she needed FMLA leave. The court noted that by itself, Murphy's statement that she needed thirty days to "take care of things" would not suffice. However, the record included other facts that "taken in their totality" could be enough to support Murphy's case. Specifically, the court found that the sudden death of Murphy's husband, the fact that she was noticeably distraught, and that she had said that she was unable to work the night shift because it reminded her of her husband could be sufficient to place FedEx on notice of her mental state. Further, the court noted that Murphy's request for additional leave occurred during a brief conversation in which Karnes told her that her FMLA leave had expired and asked if she required additional leave. The court found that a jury might reasonably interpret this as a request for additional FMLA leave. 

Insights for Employers

1. This case again emphasizes the low bar for providing notice of the need for FMLA leave. Aside from the fact that she was upset by the death of her husband - which one might reasonably assume is a normal, healthy reaction to the loss of a loved one rather than a medical condition - FedEx had almost no information suggesting that Murphy might have an FMLA-qualifying serious health condition. Nevertheless, in light of cases such as this, it may be prudent for employers dealing with employees who have suffered traumatic events to take steps to determine whether the FMLA applies to any request for leave.
2. The situation in this case may not have been as clear-cut for the HR and management personnel involved in the decision as they appear from the 8th Circuit's opinion. However, if the facts were as stated in the decision, it appears that FedEx might have avoided this lawsuit if, instead of immediately terminating Murphy's employment, it had advised her that her leave request was denied and given her a chance to come back to work or properly request an extension of her FMLA leave. 
3. This case also demonstrates the importance of properly training supervisors about how to communicate with employees regarding leave requests. Murphy's case hinged upon Karnes's statement that her request for 30 days leave would not be a problem and that he would take care of notifying HR. If supervisors do not have authority to grant leave requests, then it is important that they be instructed to clearly advise employees that they need to contact HR for approval, and not to make commitments that may later bind the company.

Under the FMLA, an employer's obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee's notice is sufficient if it gives the employer enough information to reasonably conclude that the employee may need leave for an FMLA-qualifying reason. Determining whether an employee's request for leave meets this requirement is a difficult proposition, particularly when the employee appears to be using the request to avoid instructions or shield himself from discipline. A recent decision of the 6th Circuit Court of Appeals sheds some light on the subject, and affirms that an employee cannot avoid discharge for insubordination merely by claiming that he had a headache and needed to go home. Gipson v. Vought Aircraft Industries, Inc. (.pdf).

Howard Gipson worked for Vought Aircraft Industries, Inc. as a plant maintenance worker. He also served as president of his local union. In late 2004, he had triple bypass heart surgery. He requested and received FMLA leave, and returned to work without incident. In October 2005, Gipson was removed from his position as union president. In January 2006, his successor removed Gipson's personal effects from the union office in the plant, placed them in the lobby outside the HR office, and asked Gipson to retrieve them. Gipson did not do so. On January 26, 2006, Gipson's supervisor, Charlie King, directed Gipson to remove his belongings from the lobby. Gipson did not comply, even after King repeated the instruction. When King ordered him to remove his belongings for a third time, Gipson stated that he began to feel unwell, and later alleged that King's behavior exacerbated his heart condition. However, he did not complain about his health or otherwise state that he needed medical attention. 

Later, Gipson went to the plant's First Aid department, where a nurse checked his blood pressure and found that it was "a little high, but within normal limits." Gipson asked the nurse for permission to go home, but was told that he needed authorization from his supervisor. Gipson did not claim that he told the nurse about any specific symptoms or mention his heart condition. 

On the way back from First Aid, Gipson told the union's safety committeeman to call King and request a medical pass, stating that he intended to use the pass to go home and get his medicine or see his doctor. He did not say what medicine he needed or what his ailment was. Gipson then returned to the maintenance department, where he told King that he was in pain and needed to go home and get his medication. King told Gipson that he could not leave "until we take care of business." King's supervisor and the plant's HR manager arrived, and again ordered Gibson to retrieve his belongings from the HR lobby. Gipson declined, stating that he had a "very bad headache." Gibson acknowledged that he was given a direct order to move his belongings and did not comply. He was terminated for insubordination. 

Gipson left the plant and drove appoximately 30 miles to his doctor's office. Once there, he did not receive immediate medical attention. Rather, he made an appointment for a date three weeks in the future. He then went home. 

The Lawsuit

Gipson filed suit in Tennessee state court alleging that Vought violated the FMLA by refusing his request for leave and terminating him in retaliation for exercising his FMLA rights. Vought removed the case to federal district court. The district court granted summary judgment for Vought. Gipson appealed. 

With respect to Gipson's claim that Vought unlawfully denied his request for FMLA leave, the Court of Appeals held that Gipson's statements to Vought management were not sufficient to place the company on notice that he required FMLA leave. The court rejected Gipson's argument that his notice was sufficient because Vought knew that he had undergone triple bypass surgery, noting that there was no evidence that Gipson had ever notified Vought of ongoing heart problems or continuing treatment for his heart condition. 

The Court of Appeals also rejected Gipson's retaliation claim, finding that Vought could not have retaliated against Gipson for exercising his FMLA rights because Gipson never gave the company adequate notice that he needed FMLA leave. Rather, the court found that Gipson's insubordination was a legitimate, non-retaliatory reason for terminating Gipson's employment, noting that "an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."

Insights for Employers

1. Claiming illness is not by itself sufficient notice of FMLA leave. The FMLA regulations are quite clear that an employee must do more than "call in sick" or claim illness to put the employer on notice that he or she needs leave due to a serious health condition. This case might have had a different result had Gipson stated that he needed leave to see the doctor due to his heart condition. However, because his gave no specific reason for his requests to leave work, he failed to give adequate notice under the FMLA.
2. When in doubt, ask. While this case turned out well for Vought and illustrates the limits of the FMLA, the company may have narrowly dodged a bullet here. Had Gipson provided slightly more information - or even if he later claimed that he had done so - this case could easily have come out differently. In close cases, when an employee asks for leave due to a health condition, employers should strongly consider inquiring further to determine whether or not the FMLA applies to the leave.
3. The FMLA is not a shield. All too often, employees facing discipline or termination will use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. Unfortunately, this puts employers in the difficult position of having to either give the employee a pass or risk a retaliation claim. However, where the grounds for discipline or termination are clear, as in this case, the FMLA will not protect the employee from the consequences of that action.