draw the lineOne of the most difficult issues an HR professional or in-house employment counsel faces is how to deal with an employee who cannot return to work after FMLA leave expires. Is additional leave beyond 12 weeks required? The answer is almost always ‘yes.’ But how much leave are we obligated to provide? And what if the employee already has taken months of leave and doesn’t really know when she’ll return?

Take, for instance, a situation involving Penelope.  We’ll call her Pippy, for short.

Pippy suffered from sarcoidosis (inflammation of the lungs) and arthritis related to her condition. In September, she inquired about reducing her work schedule as an accommodation for her condition. Before her employer responded, however, Pippy suffered an injury that aggravated her medical condition.  The injury caused Pippy to take time off in December and January, and in February, she stopped working.

Between February and May, Pippy’s employer sent her multiple letters requesting documentation of the injury, but she didn’t respond. In June, her employer told her that she either had to report to work or provide medical documentation supporting her need for leave. Soon thereafter, Pippy sent her employer a “disability certificate” signed by her doctor indicating that the injury suffered a few months earlier left her “totally disabled” and she would remain so “indefinitely.” In contrast to her physician, however, the employee told her employer that she “hoped” to return by September 2007. Unwilling to wait any longer for Pippy’s uncertain return, her employer terminated her employment.

Like a typical, litigious former employee, Pippy filed suit.  It didn’t last long.  Pippy forgot one basic principle — an employer is never required to provide an employee an indefinite leave of absence. Particularly after the employer has already provided a reasonable amount of leave as an accommodation to help the employee return to work.

Like many others have done in similar situations, this court dismissed Pippy’s ADA claim in large part because her employer provided her a reasonable amount of leave (here, three months), and she could not provide a reasonable estimation of her return to work.  In other words, she was asking for an open-ended, indefinite leave of absence.  Courts almost always will support an employer’s right to terminate employment in instances like these.  Other employers should take note — when an employee cannot provide a reasonable estimate of when they will again be able to perform their essential job duties, their ADA claims skate on thin ice.  Minter v. District of Columbia (pdf)

But let’s not be too confident…

In situations like these, it is imperative that employers engage in the interactive process with the employee to determine whether any accommodation is available to help the employee return to work. When employers don’t, they risk significant liability under the ADA.

Just ask the Wayne Township Fire Department.  The Fire Department hired Kristine as a reserve paramedic in February 2009 and as a full-time paramedic a few months later, knowing that she had Type 1 diabetes. While on the job, Kristine’s blood-sugar levels dropped on two occasions while she was on duty — once while she was driving and again while she was caring for a patient in the back of an ambulance. Kristine told her supervisor and other officials what had happened.  Shortly thereafter, she was told she could not return to work without approval from the agency’s medical director, who refused to return her to work because she could not “guarantee” any further incidents. Declining to engage in any interactive process, the Fire Department simply terminated Kristine’s employment.

That cha-ching sound is the Fire Department’s cash register, which opened wide to the tune of $725,000 to pay Kristine for its ADA violations and her attorney’s fees.  Rednour v. Wayne Township Fire Dept. (pdf)  One of the “fundamental” issues for the jury’s verdict in favor of Kristine? The mere fact that the employer did not engage in the ADA’s interactive process.

Think about it: Three-quarters of a million dollars simply because the employer failed to engage in the interactive process.  What a waste.

In her analysis of Kristine’s case, Miriam Rosen identifies several steps that an employer should take to identify accommodations in situations like these.  I really liked her suggestions, so I paraphrase them here:

  • Obtain information from the employee and employee’s physician (through the employee, of course) to understand the medical condition and how it affects the employee’s ability to perform essential job functions.
  • Identify the essential job functions that the employee must perform with or without an accommodation. Up-to-date job descriptions are key to this process.
  • Do not make assumptions about whether the employee can or cannot perform the essential job functions. Rather, engage in a dialogue with the employee about what modifications would help the employee perform the essential job functions. Consider whether other options for accommodation are available if the suggested accommodations are not reasonable.
  • Determine if it is possible to provide reasonable accommodations that allow the employee to perform the essential functions of the position. Remember that accommodations such as a leave of absence or, if available, light duty may allow the employee to perform job functions within a reasonable time.
  • If an accommodation is identified, put it into place. If it is not possible to provide a reasonable accommodation, communicate that to the employee as well and any employment related consequences.
  • Document the process and outcomes to establish that obligations to engage in the interactive process have been met.

Engage in a meaningful interactive process. Conduct an individualized assessment. Be creative in providing accommodations to keep the employee on the job.  Avoid liability.

Easier said than done, right?

BossHow would you like to work alongside Jim, who engages in the following behavior:

  • He makes a habit of telling co-workers what they are doing wrong, using a degrading tone of voice, and instigates arguments when doing so.  Jim regularly uses a belligerent tone of voice with co-workers.
  • When his supervisor tells him to act more professionally with co-workers, Jim tells him he would “never back down if he felt he was defending himself.”
  • He sends an email to a co-worker, telling him, “You’re my bitch.”
  • When Jim’s wife visits him at work, Jim inexplicably introduces his wife to his co-workers by stating, “This is my bitch.”
  • He tells his boss that there better be no “nonsense” in his performance evaluation.
  • After being repeatedly warned about his inappropriate communications with other employees, Jim sends an email to a co-worker, warning him “to refrain from any sarcasm towards me as you do not have the mental ability to handle any sarcasm that is returned to you.”

After this last email, Jim was terminated because of his inappropriate interactions with other employees. If that wasn’t enough, after he was terminated, Jim refused to leave the premises until the police were called. As he was being escorted out by the police, he shouted out, “You haven’t heard the last of me!”

A fairly easy employee to terminate, don’t you think?  He couldn’t possibly have a viable legal claim against us, right?


You see, at the very time Jim was busy calling a fellow employee his “bitch,” he also was requesting FMLA leave to care for his son. And what was his supervisor’s response to Jim about his FMLA request?  A one-liner:

The Company “paid for [Jim’s] insurance and thus expected him to be at work.”

That’s it. That’s all the boss said. Oh yeah, the boss also allegedly “appeared frustrated and aggravated” when Jim turned in his FMLA paperwork. Whatever that means.

One ill-advised comment.  That’s all it took, since the court reviewing Jim’s FMLA claim found that this one remark (along with the “frustrated and aggravated” look, of course) was enough to allow a jury to consider whether the Company violated the law.  Hefti v. Brunk Industries, Inc. (pdf)

If true, it’s quite a costly comment, as it could saddle the Company with a judgment well into the six figures between attorney’s fees and damages.

Insights for Employers

1.  Mind your communications. The Company may ultimately convince a jury to find Jim as he is — a belligerent employee who deserved termination.  To be clear, the Company disputes that the supervisor ever made the comment, and it will have the chance to prove its side at trial. However, alleged comments of the kind here by Jim’s direct supervisor give a reviewing court such an easy basis to allow a case to go to a jury.  In any event, these are not the kind of communications an employer wants to present to a jury.  Enough said.

2. Another friendly reminder: Prepare honest performance evaluations. Shortly before Jim’s termination, he received a decent performance evaluation, and in particular, he received a “4” out of “5” in workplace behavior. Huh? This smacks of a supervisor who avoided another difficult conversation with the employee. Yet, this positive score seemed to influence the court’s decision in allowing the claim to go to a jury.

3. Training Saves Money. Please, please, please train your employees on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should include a stern warning against any stray comments of the kind above. Investing a couple hundred bucks now to conduct effective FMLA training will maximize your chances of saving tens of thousands when the real life situation presents itself.

no restrictionsDo you know what happens when you maintain a policy or practice that requires an employee to return to work without restrictions or “100% healed”?  You pay.  A lot.

Just ask Brookdale Senior Living Communities. Brookdale employed Bernadine, who suffered from fibromyalgia. According to the EEOC, Brookdale refused Bernadine’s accommodation requests for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office.

The EEOC also alleged that the Company required Bernadine to remain on “full FMLA until she [was] fully released.”  In other words, she could only return if she was able to perform her job without any restrictions or accommodations. Brookdale later terminated Bernadine, contending that the employee caused a breakdown in the reasonable accommodation process.

The EEOC later brought suit on behalf of Bernadine, claiming that the Company’s failure to accommodate and its alleged requirement that Bernadine return “fully released” violated the ADA.  Access the EEOC’s lawsuit here.

Of course, these are simply the EEOC’s allegations, and we’ll never get to the truth, since Brookdale and EEOC agreed to settle the case before any discovery occurred.  As part of the resolution, as explained in an EEOC press release, Brookdale is required to:

1.  Pay $112,500 to Bernadine as alleged back pay and alleged compensatory damages.

2.  Train all local employees and managers on the ADA’s requirements, including the need to provide reasonable accommodation to qualified individuals with disabilities.

3.  Report to the EEOC if there are any complaints of disability discrimination or retaliation.

What’s the Problem with a “Fully Released” Approach? 

Whether or not Brookdale engaged in the conduct alleged by EEOC, this scenario is instructive. When employers require that employees be “fully released” or “100% healed” before returning to work, the far majority of courts have found that these policies and practices discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.  And such an approach raises the ire of the EEOC.

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA to determine whether an accommodation can be provided to help the employee return to work; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Insights for Employers

All too often, I come across my clients’ policies or practices that require an employee to return to work only after they are 100% healed or without restrictions.  Here’s my periodic reminder to employers: STOP!

Enforcing these types of policies or requiring evidence that employees can return to work “without restrictions” takes on a tremendous amount of risk.  Far too much risk, in my opinion.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.  In light of the EEOC’s recent litigation in this area, including the most recent one against Brookdale, this approach is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation, and inviting a conversation about what assistance they might require to return to work.  If you remember the report of my presentation with EEOC Commissioner Chai Feldblum last year, this communication is critical to remain compliant, and it should come early and often.

Love-BoatThis post has nothing to do with Netflix and its new, generous parental leave policy.  Or GOP presidential candidate Carly Fiorina’s latest position on paid leave. Sorry to disappoint.

But it does involve an exotic boat cruise. And of course, the FMLA. Tantalizing? Jump aboard the Love Boat to find out…

The Facts

Lucy worked for the State of Washington Employment Security Department.  During her employment, Lucy suffered from and was given intermittent FMLA leave for migraine headaches, a condition which is covered by the FMLA.  The following year, in January 2011, Lucy submitted a doctor’s note excusing her from work for a two-week period for “FMLA vacation,” presumably because of her migraines.

Per the plan, Lucy headed off a few weeks later on a two-week boat cruise.  Her excursion flew under her employer’s radar until her step-father (huh!?!) unwittingly shared the news with Lucy’s co-worker that Lucy and her husband were spending two weeks away on the Love Boat.  This drew the employer’s skepticism about Lucy’s need for FMLA leave (and likely some expletives, too).  As a result, the employer reached out to Lucy’s doctor directly, expressed “some concern” about the two-week vacation and posed a number of questions to Lucy’s doctor about her medical condition.

The doctor failed to timely respond, and when he finally did, he indicated that Lucy was not incapable of working during the time she was on the cruise.  After her termination, however, Lucy’s physician sent another note to her employer stating, in part:

A common medical practice, which I followed, was to see if a break from the problem for a few weeks would ameliorate [her migraines] . . . I found that the separation did alleviate the problem, by the second week the headaches has dissipated and she was recharged, anxious to return to work . . . .

Lucy was anxious to return to work, I’m sure.

Waiting for Lucy upon her return to work was a 12-page termination letter citing six different reasons for her termination. [Apparently, someone wanted to ensure this termination would stick.] Among other reasons, the Department terminated Lucy’s employment because she “inappropriately and in violation of agency policy took a pre-arranged cruise,” which was not related to the FMLA.

A termination decision that makes perfect sense.

cruiseThe Ruling

After her termination, Lucy filed an FMLA interference claim, but she needed far more than a life preserver to save her claim.  The court quickly dismissed her FMLA lawsuit, finding that: 1) Lucy presented no evidence that actually she was incapacitated from working while she was gone from work; and 2) there was no evidence that a two-week cruise was medically necessary to deal with her migraines. Notably, the doctor’s response indicated that he did not consider Lucy incapacitated during the two-week period and that he was approving “FMLA vacation” time simply because Lucy told him she had vacation time available to her.  These admissions undermined Lucy’s FMLA claims, effectively leaving her stranded at sea. Fitterer v. State of Washington Employment Security Department

Insights for Employers

A few useful takeaways for employers here:

1.  Some time back, one of my clients was wrestling with a similar situation — a doctor who submitted a note approving a trip to Disney World to alleviate an employee’s stress, which was causing her to miss work.  [Not that there’s anything wrong with Disney — it’s a most magical place, as one of my previous posts attests!]  My client relented, ultimately allowing the employee to take the Disney trip and declining to contest its medical necessity.  This decision gives employers in my client’s situation the courage to stand up to situations like these that absolutely smack of FMLA abuse.  In short, if the employee is not incapacitated and is not seeking treatment wherever she is heading, her absences do not trigger the FMLA, and they should be treated as such.

2. Use the FMLA tools available to you to obtain more information about the medical condition and the certification.  Here, it seems apparent that the employer did not ask any follow-up questions when it received a doctor’s note excusing Lucy for “FMLA vacation.”  Some basic questions come to mind: What’s the reason for a two-week “FMLA vacation”? Will she be unable to work during this time period?  Will she be seeking treatment?  The employer asked these questions only after it learned that she was on a cruise. In some situations, however, this might be too late.

3.  Be extremely careful about contacting the employee’s health care provider directly without the employee’s permission.  Under the FMLA regulations, employers may contact a health care provider directly only to authenticate or clarify certification.  Here, the employer arguably was clarifying Lucy’s certification and need for FMLA leave, a communication that must have been approved first by Lucy (through a HIPAA-complaint release).  The employer arguably committed a technical violation of the FMLA in reaching out to Lucy’s physician without her permission, which, in turn, could have undermined its defense against Lucy’s FMLA claims. Don’t make this mistake — clarifying certification must be approved by the employee in advance and in writing.

4.  With number 3 above in mind, I still admire the employer for informing the physician of its “concern” about whether Lucy’s cruise was consistent with her need for FMLA leave and asking him to answer a series of questions about Lucy’s medical condition (all within FMLA bounds assuming they first obtained her permission to do so).  I encourage my clients to use similar and blunt terminology and questions to discuss suspected FMLA abuse with an employee’s health care provider, as it suggests that the employer is taking the employee’s absences/patterns seriously and that it’s not a situation to be taken for granted.

gay marriageOn Friday, June 26, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution.

So, I’ll give you one guess as to the topic of my blog post today.

How is the FMLA Impacted by the Supreme Court’s Ruling on Same-Sex Marriage?

Earlier this year, the Department of Labor issued a final rule allowing an otherwise eligible employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognized their marital status.  Now that the Supreme Court has declared that same-sex marriage is a Constitutional right, states can no longer prohibit same-sex marriage.  Obergefell v. Hodges (pdf)

As a result of the Supreme Court’s decision, it appears any questions regarding the DOL’s Final Rule have been all but eliminated.  This means that employers must permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons.

What About the Four States Covered by the Texas Court Decision Halting Issuance of the DOL’s Final Rule?

As  I reported in a previous post, four states (Texas, Arkansas, Louisiana and Nebraska) obtained an injunction stopping enforcement of the DOL’s final rule. Although we don’t know how these four states will proceed in light of the Supreme Court’s decision, the Court’s decision validates the DOL’s definition of “spouse.” The DOL has not yet issued any statement on enforcement in these four states, but employers in these states that elect not to provide FMLA leave to same-sex spouses are taking on significant risk.

What Do Employers Need to do Now?

In another of my previous posts, I gave employers extensive guidance on what they should do in light of the new DOL rule on same-sex spouses. Among other things, employers should:

1. Update FMLA policies and forms.

2. Train supervisors and administrators on the new rule.

3. Determine whether any state leave law applies, as they may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

4. Be mindful that the DOL’s new rule covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater leave rights than those provided for under the FMLA.

midnightQ: One of my employees complained of chest pains at work and later went to the emergency room at the local hospital. However, we have learned through his medical certification that he was not admitted to the hospital until after midnight.  He spent most of the day in the hospital and was discharged later that same day. In total, he missed two days of work. Is this absence covered by the FMLA?

A: Under the FMLA, an employee can take job-protected leave for “any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital.” So, your employee’s protection under the FMLA hinges on whether his visit to the hospital is considered an overnight stay.

Consider this scenario, which answers our question:  Jeff (a fabulous name, as an aside) worked for a tool manufacturer and had a history of heart problems. One day he was having chest pains at work — curiously, they occurred as he was being disciplined for sleeping on the job — and he asked his supervisor if he could leave work to go to the hospital. The supervisor granted his request to leave work.

Jeff arrived at the hospital before midnight, but was not admitted until after midnight.  He remained in the hospital for 14 hours, at which point he was released.  He missed work that day and was fired for “walking off the job.” There must be another story we’re missing here, but we’re not privy to it.  Jeff (which may not be a fabulous name after all), filed suit, claiming FMLA interference and retaliation.

The Court Ruling

The FMLA regulations define “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as defined in 29 C.F.R. Sec. 825.113(b), or any subsequent treatment in connection with such inpatient care.”

Therefore, the appellate court reviewing Jeff’s case was charged with defining “overnight stay” under the FMLA.  Earlier, the trial court had determined that the employee had to stay at the hospital from “sunset on one day to sunrise the next day.”  That was not workable, according to the appellate court.  After all, how could that principle work on a wintry December day in Fairbanks, Alaska, where those poor souls live in near darkness the entire day?

Ultimately, the court determined that an “overnight” stay had to constitute a “substantial period of time” from one calendar day to the next calendar day “as measured by the individual’s time of admission and time of discharge.”  Here, Jeff did not satisfy this test — although he arrived at the hospital before midnight, he was not admitted until after midnight.  Thus, his hospital stay did not span one calendar day to the next and was not protected by the FMLA.

Although it was not applicable in this case because Jeff did not stay overnight, the court also advised that the individual must remain overnight for a substantial period of time.  In other words, if the employee is admitted at 11:59 p.m. and discharged one hour later at 1:00 a.m., this would not constitute an overnight stay protected by the FMLA.  Short of creating a bright line rule, the court suggested that “a minimum of eight hours would seem to be an appropriate period of time.”  But it left closer analysis of this eight-hour time frame to another day.

A 57-page decision to decide all of that.  Must have been written by a true FMLA wonk, and I like it!  You can read the decision here: Bonkowski v. Oberg Industries

gavel - same sexLast week, I reported that a federal district court in Texas had halted the DOL’s enforcement of its final rule that would allow employees to take FMLA leave for their same-sex spouse.

Following that court order, the DOL now has represented that it will not enforce the rule in the four states covered by the decision — Texas, Arkansas, Louisiana and Nebraska. In a court filing, the DOL said in no uncertain terms:

[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .

In the same filing, however, the DOL confirmed it will enforce the rule as to employers located in the other 46 states. ¡Ay de mi! Best wishes to that poor employer with operations in multiple states, including some inside and outside those four states. Call your favorite employment counsel to assist with these land mines!

Today (April 10), the court heard the DOL’s motion to reconsider the court’s earlier ruling prohibiting enforcement, and it refused to overturn the ruling, according to a press release issued by the Texas Attorney General.

gay_cityhall_gavelA federal judge in Texas granted an injunction on Thursday that (for the time being) has stopped enforcement of the DOL’s final rule regarding the definition of spouse.  Under the new rule, which was scheduled to take effect today, the FMLA would cover same-sex spouses if the marriage occurred in a state that recognizes same-sex marriage and allow those spouses to receive FMLA benefits even in states that do not recognize same-sex marriage. According to the court, the public has “an abiding interest” in protecting state laws from “federal encroachment.”

Earlier this month, Texas Attorney General Ken Paxton, along with the Attorneys General from the states of Arkansas, Louisiana and Nebraska, filed suit in federal court in Texas asking that the court strike down the DOL’s final rule. “The Obama Administration’s attempt to force employers to recognize same-sex marriages would have put state agencies in the position of either violating Texas law or federal regulations,” Texas AG Paxton said in a statement Thursday.

In issuing its order, Judge Reed O’Connor barred the DOL from enforcing the rule pending a final ruling on the merits of the Texas AG’s claim.  The ruling raises doubts about whether the DOL will enforce the new rule in the other states not covered by the court’s injunction.  My fellow employment blogger, Jon Hyman, thinks the DOL will stand down until a definitive ruling is issued.  While I can’t disagree with him, I am not so sure what the DOL will do.  I have a call into the DOL now about how it will administer the new rule in light of this ruling and will update when/if I receive official word from the agency.

The DOL has asked the court to reconsider its decision, and the oral argument on this request has been set for April 13.

As another blogging friend, Robin Shea, points out, this entire issue might become moot once the Supreme Court renders a decision in the four same-sex marriage cases it has agreed to decide this term.

For more information on the DOL’s final rule, access my post here.

headache -- funny dogIn the cold, sadistic world that is the FMLA, the Department of Labor tells us that ordinary, run-of-the-mill headaches (a/k/a “non-migraine” headaches) are not covered by the FMLA.  Migraine headaches, on the other hand, are covered. When I try to explain the difference in FMLA training sessions for employers, they often look at me like I have two heads.

“Yeah right,” they tell me. “Like we’re really going to track every migraine headache as FMLA leave!?! Do you realize how busy we are?”

Refrain from designating FMLA leave for this reason at your own risk.

Now, employers have yet another reminder that the FMLA offers the same protections for migraines as it does for open heart surgery.  Here’s the scenario:

The Facts

For years, Jill’s managers at Boeing knew of her migraine headaches.  For several years leading up to 2012, plaintiff telecommuted from time to time because of her migraines, and beginning in 2012, plaintiff’s migraines became more frequent.  In spring 2012, Boeing informed employees that they could no longer work partial days when they were sick — leave had to be taken in full day increments.

In June 2012, Jill was informed for the first time that she could apply for FMLA leave to cover absences caused by her migraines. So, she took intermittent FMLA leave for the remainder of 2012, but because she was no longer allowed to work partial days, her absences were far more frequent than they were before, and her reviews suffered as a result. Jill also was disciplined for “unexcused” absences.  However, the facts indicate that at least some of these absences were due to her migraine headaches.

When she took a four-day leave of absence from April 29 through May 2, 2013 — for migraine headaches — her employment was terminated.

The Court Ruling

Finding that Jill gave sufficient notice of the need for FMLA leave and then was absent for migraine headaches, the court refused to dismiss her FMLA claims, finding that a jury could determine that her employer interfered with her right to take FMLA leave on these occasions and used her migraine-related absences as a negative factor in her employment. Alexander v. Boeing Company (pdf)

Insights for Employers

Strike One:  The employer failed to recognize that migraines could be covered by FMLA.  Despite the DOL’s pronouncement that migraine headaches are covered by the FMLA, this employer failed to consider that absences taken for this medical condition are protected. 29 C.F.R. 825.113(d)

Strike Two: The employer used Jill’s absences for migraine headaches as a negative factor in her employment evaluations, which is a sure fire way to lose on summary judgment.  Here’s what her own supervisor had to say about Jill in his deposition:

It was difficult. I know in her last performance review, it was difficult to give her an adequate performance review without her being at work as much as, as often as she missed. When she was at work, she was very effective and I alluded to that in her performance review, but the fact that she did miss a lot of work did play in the fact that she wasn’t as effective as she could have been just by the fact she wasn’t there.

That’s a supervisor who was not prepared very well for his deposition.  Had he been prepared, he would have understood that FMLA-protected absences (i.e., those days when she suffered from migraine headaches) could not have been used as a negative factor in her employment evaluation.  The court picked up on the supervisor’s testimony and quoted it verbatim when it refused to dismiss Jill’s FMLA claims.

Strike Three: Jill’s supervisors learned that she had applied for “FMLA leave,” yet they still chose to terminate her employment at that time for “job abandonment.”

Why jump the gun? In a rush to judgment and assuming the worst, Jill’s supervisors created a whole lot of liability for the company. In these situations, employers are well served to: 1) find out the medical facts behind the employee’s absence (in other words, talk to the employee!); 2) if necessary, obtain medical certification so you can better understand the alleged serious health condition and the need for and length of leave; 3) give the employee time to provide the requested medical certification; and 4) avoid making termination decisions unless and until you have reviewed the medical certification and — with legal counsel — have decided that termination is warranted based on legitimate, non-discriminatory reasons.

expectant-dadAlthough I eagerly anticipate the arrival of a baby due to be born in the Nowak family within the next couple of weeks [number 4…somebody help me!], I assure you that my status as “expectant dad” is not clouding my objectivity regarding the rights of moms and dads in the workplace.

But the fact of the matter is this — a few employers apparently have made some rather foolish decisions lately when terminating the employment of an expectant parent, and it’s making the rest of us look like we don’t care much for moms and dads or, for that matter, the next generation.

Last month, I shared the story of Ena, whose employment was terminated one day before she would have been eligible for FMLA leave, which she then could have taken due to pregnancy complications.

Now, take a whiff of this one.

Ron was Vice President of Sales for an Ohio company that sold cleaning and janitorial supplies, among other things.  He also was an expectant dad.  On June 6, 2012, he requested permission to take June 11 through June 15 off because of an “unexpected appointment” for his pregnant wife.  His boss, who doesn’t come off as the FMLA-savvy type, told him he could use paid leave to cover June 11 and 12, but “if he chose to take [July 14 and 15] off, they will be unpaid.”

Ron then sought out Human Resources to obtain the necessary FMLA paperwork for his leave of absence. By June 15, however, Ron was terminated, apparently for poor performance.

Ron could not find an employment attorney fast enough.  He did, they sued, and you can guess what happened next. You can read more here: Rice v. Kellermeyer

Insights for Employers

There are a lot of takeaways here:

  1. The Timing of a Termination Decision is Important no matter what you think the courts say.  Every employment defense attorney (including yours truly) makes the argument that the timing of the employment decision alone is not sufficient to support a retaliation claim.  This argument isn’t as persuasive to the courts as it once was, as the courts are allowing far more tenuously timed decisions to support employee claims.  Take this court, for example, which said: “a close temporal proximity between the protected activity [request for leave] and the adverse employment action meets the low threshold of proof necessary to establish a prima facie case of retaliation.”   In other words, you need to have some good facts on your side.
  2. When you terminate an employee shortly after they make a request for FMLA leave, please make sure you can back it up!  Here, the employer argued that it terminated Ron because he was a poor performer.  This reason, however, was undermined by: a) Ron’s relatively positive performance review (which stated, among other things, that Ron “is a valued member of [the company] and the skill set [Ron] exudes is a benefit to the company”); and b) the company president’s decision to entrust Ron with even more responsibility in the time leading up to his termination.  Employers, let this case be a warning to you — before terminating an employee who has requested leave (whether he is an expectant dad or otherwise), it is critical that you have established some reliable level of well-documented progressive discipline prior to the decision.
  3. Be mindful of the new EEOC guidance regarding pregnancy discrimination.  As I discussed in my post last week, with the publication of the EEOC’s new guidance, employers face even more scrutiny during the EEOC investigations of pregnancy discrimination claims.  If we have not taken seriously the reasonable accommodation requests of expectant moms (and dads), including the need for leave from the job to attend to pregnancy-related issues, we must do so now.  Otherwise, a whole lot of liability awaits us right around the corner.
  4. Moms and Dads make for sympathetic plaintiffs.  If you frankly could take or leave child bearers and expectant parents, and money is your bottom line, it still makes eminent business sense to treat these employees fairly when they request time off to attend to pregnancy-related issues.  Just ask the employer here.