Here’s a puzzle for you.  How would you handle it?

Mary Beth is a nurse for a local hospital and has been diagnosed with cancer and asthma.  Over the course of about one year:

1. She is certified for FMLA leave for her cancer and asthma;

2. She incurs a total of 13 intermittent absences in a 12-month period;

3. A handful of these absences relate to her cancer and asthma; and

4. Plenty more absences are for various other reasons, including foot pain, a stress fracture in her foot, sore throat, dizziness, common cold, stomach cramps, an upset GI,  and diarrhea.

Sheesh! Some of this stuff is TMI.

In any event, under the hospital’s policies, an employee is subject to termination when they accrue seven absences in a rolling 12-month period.  When Mary Beth reached this grand milestone (and then some), the hospital terminated her employment.

But what about the FMLA absences? Can Mary Beth lawfully be terminated for the non-FMLA absences even though others are FMLA-related?

Many of my clients are paralyzed by this situation. Among other things, they are concerned that: 1) the employee cannot be terminated because it comes during a time period when the employee is using FMLA leave; or 2) the employee will claim after-the-fact that they reported an FMLA-reason for some or all of the absences and that they should not have been considered for the termination.

The Ruling

In Mary Beth’s situation, she was properly terminated, and the court said so.  The court summed up its reasoning quite simply:

Plaintiff was entitled to take leave for [cancer and asthma] under the FMLA, as she had done in 2012 for a brief time period. However, by plaintiff’s own admission, most of her absences between April 2013 and April 2014 were unrelated to her asthma and were unrelated to her bladder cancer . . . FMLA qualified absences aside, plaintiff still missed ten days of work for miscellaneous reasons—three absences more than allowed by defendants prior to termination.

A just result. As the court pointed out, by Mary Beth’s own admission, most of her absences during the time period identified by the employer were unrelated to her asthma and bladder cancer, so they could not have been protected by the FMLA. Bertig v. Julia Ribaudo Healthcare Group (pdf)

Insights for Employers

The Court’s decision to dismiss Mary Beth’s FMLA claims was made easy because the employer did a fabulous job documenting all of Mary Beth’s absences. If employers want the same level of success, two steps are critical:

  1. Document each absence: The Hospital documented each absence and the reasons for the absence on an “Absence or Tardy” report (see copy on the right).  In this report, the employee’s supervisor documented the reason for each absence/tardy along with additional details about the absence.  These reports later are golden when the employer is considering termination, as we now have an actual document explaining why an employee was absent on a particular occasion.  It takes some work, of course, but it’s highly effective. Let’s face it: Some of you “log” all your call-ins for in some book or the back of a napkin that never sees the light of day. Work with your employment counsel to construct a system for logging calls which sufficient information about the absence and a review by an HR or a leave administrator so that the employer follows up with the employee on potential FMLA-related absences.
  2. Audit Absences at the Time of Termination. Before you hit the termination button on an employee due to attendance issues, conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation (see your new logging system above) that none of these absences could have been covered by the FMLA or ADA. If there is any doubt about whether one or more days could have been covered by FMLA, ask the employee about the absence.
  3. Don’t forget progressive discipline and the interactive process. As Mary Beth accrues unexcused absences, are you talking to her about your attendance expectations and how she is falling short? Are you also using it as an opportunity to ask her if there is anything you can do to help her meet your expectations? Unfortunately, some of my clients call me well down the road in this process, and I learn that they have not had sufficient dialogue with the employee to set expectations and offer assistance. Engaging in progressive discipline and showing that you did all you could to help the employee succeed leading up to termination adds yet another strong layer to guard against an FMLA or ADA claim.

sick-day.jpgAs employers, we face a sobering reality: at every turn, the FMLA sets us up to fail.

Whether it’s deciphering medical certification, assessing fitness for duty upon return to work, or dealing with the always frustrating intermittent leave, the FMLA is full of booby traps ready to nail us the instant we slip up.

Chief among these traps is trying to determine precisely the moment when an employee has put the employer on notice of the need for FMLA leave. To those not familiar with the FMLA, it seems easy enough — after all, FMLA isn’t triggered until the employee informs the employer they need leave covered by the FMLA. The FMLA regulations provide only the following guidance when it comes to employee notice:

An employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. 29 CFR 825.303(b)

Sufficient information, huh? Don’t we wish it were that easy! How do we know when the employee has provided information sufficient enough for us to realize they are asking for leave that may be covered by the FMLA? There is no magic formula to get it right. Yet, when we don’t get it right, the liability can be tremendous.

Take, for instance, a real-life situation I recently encountered. My client employed a custodian who, by any measure, had a deplorable attendance record. You name the excuse for not showing up for work, and she used it.

She also had a bad back — a chronic bad back that she didn’t report until her deposition with me.  In that deposition, instead of acknowledging that she simply called in “sick” on the night that later led to her termination, she manufactured a reason, claiming she reported to her manager that she would miss work because of her “bad back.” The problem for my client was that it did not properly log her call and the reason for her absence, which opened the door for this former employee to put her own spin on the excuse she gave that day.

Insights for Employers

Employers, when it comes to employee notice, it is critical that we formulate specific call-in procedures for reporting leave and set up a compliant system for handling and memorializing the reason(s) employees give us when they miss work. When we don’t do so, we take on way too much risk. Implement the following to substantially minimize your liability:

1. Maintain effective call-in procedures.  Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), the person to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse, help you address staffing issues at the earliest time possible, and establish a strong defense if litigation ensues.

2. Require actual information from your employees! How many of you allow your employees to leave cryptic messages for you on Company voicemail when reporting an absence? Do you have a practice of returning these voicemail messages? How many of you actually probe further to determine the reason for the call off? A couple of thoughts to obtain the information you need to determine whether FMLA applies:

First, include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you’ll also want to include expectations for completing a leave of absence request form, which I also recommend.) My model policy provision looks something like this:

When you contact Human Resources to report your need for leave, you must provide at least the following information:

o The specific reason for your absence, with sufficient information to allow the [Employer] to determine whether the FMLA may apply to your request;

o When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

o A telephone number where you may be reached for further information.

Second, ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play. As you have read in my previous blog posts, I recommend using a script of questions to assist you in your efforts.

3.  Use a Uniform Approach to Documenting Absences. Many of you “log” all the call-ins for a particular shift in some book or the back of a napkin that never sees the light of day. Work with your employment counsel to construct a system for logging calls which requires as much information as possible and a review by HR or a leave administrator so that the employer follows up on potential FMLA-related absences.

4.  Use a Leave Request Form for all absences.  Where possible, require your employees to submit a leave request form for all absences so you know — on paper — the reasons for their need for leave. If they have an unforeseeable absence, require that they fill out a form upon their return to work. Having the reason in writing helps you better determine whether FMLA might be in play.

5.  Use Personal certification. For those who can pull this from an administrative standpoint, require all your employees to provide personal certification after every absence (FMLA or otherwise) confirming that they look leave for the reasons provided.  See my previous post that addresses personal certification in greater detail.

6.  Audit Absences at the Time of Termination. Before you hit the termination button on an employee due to attendance issues, please please please conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation (see your new logging system above) that none of these absences could have been covered by the FMLA or ADA. If there is any doubt about whether one or more days could have been covered by FMLA, ask the employee about the absence.

7.  Train any and all managers remotely involved in the FMLA process.  Employers, I love you dearly, but many of you are guilty of this FMLA 101 principle — you require that your manager play some role in the attendance or call-in process (e.g., they pick up the phone to take the employee’s call when they can’t come to work), but you do nothing to train them about the FMLA and how to recognize a potential FMLA absence.  Simply put, the average manager doesn’t have a clue as to their responsibilities in the FMLA/leave of absence process.  As a result, because you save a few pennies now in not training them now, you exponentially increase the potential for litigation (and a judgment against you).

Don’t waste another minute. Train. Them. Now.

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?

Wrong.

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.