Federal Court in Pennsylvania Upholds Termination of Employee on FMLA Leave Who Took A Trip To Cancun In Violation of Company Policy

On May 19, 2011,  the United States District Court for the Western District of Pennsylvania held in Pellegrino v. Communication Workers of America that an employer's enforcement of its rule requiring that employees not travel outside the immediate vicinity of their homes (with some limited exceptions, including for medical treatment) during paid leave did not violate the FMLA.

The plaintiff, Denise Pellegrino, was on an approved FMLA leave for a hysterectomy surgery on October 2, 2008.  On October 16, 2008, while on leave, plaintiff traveled to Cancun for one week.  The plaintiff was terminated for violating company policy by traveling to Cancun.  The plaintiff sued, alleging that the company violated the FMLA by interfering with her FMLA rights.

In holding that the company's application of its rule prohibiting travel did not violate the FMLA, the court explained that "the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of the FMLA leave, so long as these policies do not conflict with or diminish the rights provided by the FMLA."   The court further explained that the policy was designed to curb abuses, and did  not interfere with or discourage employees from exercising their FMLA rights.

Employers that would consider adopting a similar policy should ensure that the policy would not interfere with or discourage employees from exercising their FMLA rights, and that employees have clear notice of the policy before it is enforced. 

 

 

 

A Recent Case Holds Lessons for Employers Faced with Suspicious FMLA Leave Requests

In Moran v. Redford Union School District, the United States District Court for the Eastern District of Michigan recently held that an employee with a history of absenteeism who requested FMLA leave but took a vacation in Florida was not retaliated against in violation of the FMLA when she was terminated for refusing to sign a last chance agreement.  

The plaintiff became employed by the School District as a part-time bus driver beginning in 2001.  She was subject to a collective bargaining agreement, which provided that part-time bus drivers were entitled to five days of paid leave per year.  She had a history of absenteeism and related warnings.  On March 10, 2008, she received a verbal warning for absenteeism.  In the disciplinary meeting, she requested to take two days of leave on March 30, 2008 and April 1, 2008 to travel to Florida using airline tickets that she had previously purchased.  Her request was denied. 

A few days later, the plaintiff had an appointment with her physician, who diagnosed her with acute situational anxiety based primarily upon her complaints of work-related stress.  He provided her with a note indicating that she could not work from March 17, 2008 through April 7, 2008.  She requested a leave of absence premised upon her physician's note, and did not report to work during that time frame.  From March 20, 2008 through April 1, 2008, she traveled to Florida.

Suspecting that the plaintiff fabricated her leave request to enable her to travel to Florida, the School District attempted to contact her at home on several occasions during her leave and she did not return any messages.  Upon her return from Florida, she was suspended pending an investigation into the reason for her absence.  The union attempted to negotiate a last chance agreement, whereby the plaintiff would be reinstated and agree, among other things, that any further absences would result in termination, and she would forgo any grievance in the event of her termination.  The plaintiff refused to sign the agreement and was terminated. 

The School District argued that the plaintiff did not engage in statutorily protected activity under the FMLA because she fabricated her alleged need for leave, and that it had a legitimate non-discriminatory reason for terminating her--i.e. her failure to sign the last chance agreement. 

While the Court held that a jury could find that there was nothing plainly inconsistent about traveling to Florida while suffering from acute situational anxiety (some might disagree), it held that the School District had an honest belief that the plaintiff has misused her FMLA leave, and its termination of the plaintiff for failing to sign a last chance agreement was not a pretext for discrimination.

This case provides significant guidance to employers who are contemplating disciplining employees whom they suspect of misusing FMLA leave.  It also suggests that last chance agreements may be a viable option where an employee has a history of absenteeism and the employer has an honest belief that the employee has misused FMLA leave. 

Employers should consult their counsel when evaluating whether to discipline an employee for suspected misuse of FMLA leave. 

The Fiscal Year 2010 National Defense Authorization Act Expands Military Leave Under the FMLA ... Again

Yesterday, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act, which provides, in part, for additional exigency and caregiver leave provisions for military families.  The Act amends the military leave provisions of the FMLA, which were adopted in 2008.  The changes took effect immediately.

The exigency leave benefit (of up to 12 weeks) now will be available to family members of active duty service members in the Armed Forces who are deployed to a foreign country.  Formerly, this exigency leave was available only to family members of National Guard members and reservists. 

In addition, under the Act, the caregiver leave benefit (of up to 26 weeks) now includes leave to take care of a child, spouse, parent or next of kin who (1) is a veteran, (2) is undergoing medical treatment, recuperation or therapy for serious injury or illness, and (3) was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date of treatment.  The medical treatment must be related to a serious injury or illness incurred while in the line of duty on active duty in the Armed Forces or which existed before the beginning of military service, and which was aggravated by service in the line of duty while on active duty. 

Employers should revise their FMLA policies and notices to reflect these new amendments and comply immediately. 

Third Circuit Holds That Hours Worked At Home Count Towards the 1,250-Hour Eligibility Threshold If the Employer Had Actual or Constructive Notice of the Hours Worked

Today, in Erdman v. Nationwide Insurance Co., the United States Court of Appeals for the Third Circuit reversed summary judgment for the defendant on the plaintiff's FMLA interference and retaliation claims, holding that a reasonable jury could have concluded that the defendant miscalculated the plaintiff's hours worked when it determined that she did not meet the 1,250-hour threshold. 

To be eligible for leave under the FMLA, an employee must have worked at least 1,250 hours during the previous 12-month period.  In Erdman, the plaintiff initially requested to use her vacation time in August to prepare her child with Down Syndrome for school.  When her request was denied, she requested FMLA leave for the period of July 7 to August 29.  Approximately one month after she requested leave, but before she took any leave time, she was terminated after she used profanity during a telephone conversation that was monitored for quality control purposes.  The plaintiff alleged that the employer's motives for terminating her were pretextual, and that she was actually fired for requesting FMLA leave. 

The district court granted summary judgment to the employer on the FMLA claims on the grounds that the plaintiff had not met the 1,250-hour threshold to be eligible for leave under the FMLA.  In calculating the plaintiff's hours worked during the previous 12-month period, the district court declined to include certain hours that the plaintiff worked at home after the employer had advised her to simply "put in the hours that . . . you're supposed to put in and nothing more than that," and found that the employer could not have had constructive notice of those hours.  

Under the FMLA, all work that "the employer knows or has reason to believe . . . is being performed" counts toward the 1,250-hour threshold requirement.  See 29 C.F.R. Section 785.12.  Hours worked off-site or beyond an employee's schedule count if the employer "knows or has reason to believe that an employee is continuing to work extra hours."  See 29 C.F.R. Section 785.11.  Actual knowledge is not required; constructive knowledge will suffice. 

In Erdman, the Third Circuit found that a reasonable jury could conclude that, although the employer had communicated to the plaintiff that she would not be paid for any hours worked at home, she understood that she could continue to accrue "comp" time by working extra hours.  Moreover, the court concluded that her employer had actual and/or constructive notice that she was continuing to work from home until it explicitly prohibited her from working more than her regularly scheduled hours on February 10,2003.  Counting all of the hours that the plaintiff worked at home prior to February 10, 2003, the Third Circuit found that she had accumulated 1,282.25 total hours during the prior 12-month period. 

The Third Circuit also considered the defendant's argument that, because the plaintiff had never taken FMLA leave, she could not pursue a retaliation claim.  The defendant relied, in part, on the language of the statute, which provides that employers are prohibited from "discriminating against employees or prospective employees who have used FMLA leave."  See 29 C.F.R. Section 825.220(c) (emphasis added).  The Third Circuit held that there is no requirement that the employee "use" FMLA leave in order to bring a claim of retaliation; the employee need only have invoked his or her FMLA rights.  As such, the Third Circuit held that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee. 

The Erdman decision is instructive for several reasons.  First, it puts employers on notice that, if they have actual or constructive notice that an employee is working from home or otherwise putting in extra hours, those hours must be included for purposes of calculating the employee's eligibility for FMLA leave.  Broken down by week, an employee needs to work only approximately 24 hours per week to meet the 1,250-hour threshold.  If the calculation is close, prudent employers will err on the side of assuming that the employee is eligible for FMLA leave.  Second, the decision makes it clear that an employee need not use FMLA leave in order to preserve a retaliation claim; the employee need only request FMLA leave or otherwise invoke his or her FMLA rights in order to bring a retaliation claim.  Employers need to be aware of the significant risk that they will be faced with a retaliation claim if they terminate or otherwise take some adverse employment action against an employee who has invoked his or her FMLA rights, and there is some causal connection between the two events. 

 

 

Employers Need Not Be Mind Readers: Recent Case Law Provides Guidance Concerning What Constitutes Sufficient Notice of the Need for FMLA Leave

In Scobey v. Nucor Steel-Arkansas, 2009 U.S. App. LEXIS 19094 (8th Cir. Aug. 25, 2009), the United States Court of Appeals for the Eighth Circuit recently affirmed the dismissal on summary judgment of FMLA claims brought by an employee who allegedly notified his employer that he had a drinking problem, but did not initially request a leave of absence for treatment. 

The plaintiff worked in the defendant employer's steel mill for seven years.  Initially, he requested leave to attend the funeral of his former father-in-law.  The next day, he called the employer while intoxicated, and said that he was "done, through" and intended to resign.  On the following day, he spoke with his direct supervisor, told him that he had had a nervous breakdown, and hung up the telephone.  The supervisor had the impression that the plaintiff was intoxicated.  The plaintiff called the shift manager the same day and reported that, due to the death of his former father-in-law and some personal problems, he would not be back at work for a while.  He missed work the next two days for a total of four days. 

The next day, the plaintiff called another supervisor and told him that he could not recall the previous four days and needed help.  He subsequently treated with a physician, and notified the employer's HR manager that he had an alcohol problem and was depressed.  He received in-patient treatment for alcoholism and depression, and was later discharged to outpatient care.  While the employer did not designate the leave time as FMLA leave, it paid the plaintiff for his leave of absence.

Subsequently, the plaintiff was suspended for three days and demoted for having had four consecutive, unexcused absences.  He later stopped reporting for work, and sued his employer for FMLA interference and retaliation.  The district court granted the employer's motion for summary judgment on the ground that the plaintiff failed to provide notice that his 4-day absence was covered by the FMLA. 

In evaluating the plaintiff's claims, the Eighth Circuit noted that, under the regulations in effect at the time of the leave of absence and prior case law, the plaintiff needed to provide notice of the need for FMLA leave.  (Employers should note that the current language of 29 C.F.R. Section 825.303(b), which became effective on January 16, 2009, is more restrictive, and requires employees to specifically reference either the qualifying reason for leave or the need for FMLA leave.)  Specifically, the plaintiff needed to provide information to his employer to suggest that his health condition could be serious. 

The Eighth Circuit held that the plaintiff did not provide notice of the need for FMLA leave with respect to his four -day absence.  The court explained that initially the plaintiff requested time off to attend a funeral, which is not protected by the FMLA.  Later, he called while intoxicated and said that he wanted to resign, which was not notice that he needed time off from work.  Moreover, the court explained that, while absences for treatment for alcoholism are covered by the FMLA, absences caused by the use of alcohol are not.  The Eighth Circuit's discussion of the "constructive notice" doctrine is also instructive. 

While employers need to be proactive about designating leaves of absence as FMLA-eligible where employees notify them of the need for time off due to a serious health condition, the FMLA does not require them to be mind readers.  Prudent employers will document the reasons provided by employees for their absences from work, and offer FMLA leave as soon as it becomes apparent that an employee is eligible for such leave.

 

U.S. Office of Professional Management Issues Proposed Regulations Implementing Military Family Leave under the FMLA for Federal Employees

On August 26, 2009, the U.S. Office of Professional Management issued proposed regulations implementing military family leave under the FMLA  for federal employees.  The proposed regulations would provide eligible federal employees up to 26 administrative workweeks of leave under the FMLA to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is injured in the line of duty while on active duty; amend the rules on advancing sick leave; and make organizational changes to the existing sick leave and FMLA regulations to enhance reader understanding and administration of these programs. 

Comments must be received on or before October 26, 2009. 

See my prior postings for links to the Revised FMLA Regulations concerning military leave for employees of private employers. 

 

 

 

 

Senators Introduce Measure That Passed House To Allow Airline Crews To Take FMLA Leave

On July 9th, Senator Patty Murray (D-Wash) and a group of five other bi-partisan senators introduced legislation--The Airline Flight Crew Technical Corrections Act--that would permit flight attendants and pilots to qualify for leave under the FMLA.  The proposed legislation is similar to H.R. 912, which I discussed in a prior blog, and which passed the House by voice vote on February 9th. 

Requesting Doctors' Notes for Intermittent Leave Absences Within Three Days Can Get Employers Into Hot Water

Employers continue to be frustrated with the limited options they have to curb apparent abuses of intermittent FMLA leave.  One of the most common scenarios involves an employee who is certified as eligible for intermittent leave, has repeated absences, and takes the position without documentation that the absences qualify as intermittent FMLA leave.  To counteract this fact pattern, some employers require employees to submit doctors' notes confirming that the absences in question are covered by the FMLA. 

A recent opinion from the United States District Court for the Southern District of Ohio calls into question the practice of requesting doctors' notes within a short timeframe to establish that absences are covered by the FMLA.  In Smith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (June 10, 2009), the plaintiff presented a certification from her health care provider and was approved for intermittent FMLA leave due to her chronic major depressive disorder and dysthymic disorder.  The defendant employer used a point system that governed not only employee attendance, but other infractions and performance-related issues.  Under the point system, an employee received a written notification once she accrued four points.  Once she accumulated five points, she received a written warning and, at six points, she was subject to termination.  The plaintiff received several notifications that she had reached the six-point level due to her absences.  Under the system, the points could be removed for FMLA-related absences if the plaintiff brought in a doctor's excuse, even if the note excused several absences retroactively. 

After accumulating 6.75 points, the plaintiff was advised on May 28, 2006 that she would be terminated unless by May 31, 2006 she reduced her point level below six by providing a doctor's verification that at least some of her absences were the result of her medical condition.  The plaintiff told her supervisor that she would not be able to obtain the necessary documentation within three days.  The plaintiff stopped reporting to work after May 31, 2006, and was terminated. 

The plaintiff sued, in part, under the FMLA, alleging that the defendant interfered with her FMLA rights.  The court denied the defendant's motion for summary judgment as to her FMLA claim.  The court held that, while the defendant "clearly was entitled to some form of medical documentation for [the plaintiff's] absence even through she had been approved for FMLA leave . . . and had verbally informed her supervisor that her absences were related to her condition," the FMLA requires only that an employee provide medical documentation in a timely manner.  While the court did not require that the plaintiff be afforded 15 days to provide the doctors' notes (as would be required for a certification from a health care provider), it held that she needed to be provided with a reasonable amount of time under the exigencies of the situation to obtain any notes from her doctor.  The court further held that allowing the plaintiff only three days to obtain medical documentation for her absences was unreasonable as a matter of law. 

While this case appears to sanction the practice of requiring doctor's notes to substantiate the need for intermittent FMLA leave when those notes are requested pursuant to company policy, it also teaches that employers need to provide employees with a reasonable time period in which to comply with the request.  Given the court's reliance on the 15-day certification period as a patently reasonable timeframe, prudent employers would permit employees to submit doctors' notes within 15 days to avoid termination pursuant to company attendance policy. 

 

 

Seventh Circuit Holds That Termination of Employee Whose Performance Deficiencies Are Discovered During His FMLA Leave Does Not Violate FMLA

It's the age-old story: an employee goes on FMLA leave, and the employer discovers that the employee has serious performance problems.  More often than not, the employer makes the discovery when it hires a temporary employee to perform the employee's duties in her absence. 

A recent case tackled this precise scenario.  In Cracco v. Vitran Express, the United States Court of Appeals for the Seventh Circuit held that an employer that terminated an employee for performance problems that it discovered while the employee was on FMLA leave did not violate the FMLA.  The employee, who was a manager for a trucking company, requested and was granted FMLA leave for his own serious health condition.  During his absence, the company hired temporary replacements, who uncovered numerous problems in the manager's department.  A subsequent investigation revealed that the manager had deliberately disguised late and damaged deliveries.  On the day that the manager was to return from FMLA leave, the company terminated his employment. 

The manager sued the company, alleging retaliation and interference with his FMLA rights.  The district court granted the company's motion for summary judgment.  The Seventh Circuit affirmed.  With respect to the retaliation claim, the court held that there was no causal link between the request for leave and the termination.  Moreover, the court explained that the fact that the leave permitted the employer to discover the manager's performance deficiencies could not be a bar to its ability to terminate the manager.  The court also held that the manager failed to establish a prima facie case under the indirect method of establishing retaliation, because he failed to prove that he met his employer's legitimate job expectations at the time he was terminated.  As to the interference claim, the court explained that an employee is not entitled to reinstatement if the employer can present evidence to show that the the employee would not have been entitled to his position even if he had not taken leave.

In a recent blog, I discussed the circumstances in which an employer can terminate an employee who has requested FMLA leave.  The Cracco decision reinforces, in particular, the fact that documentation is key to defending the termination of an employee who is on FMLA leave.  The Seventh Circuit relied heavily on the fact that the company presented sufficient evidence, after a thorough investigation, of the manager's misconduct.  Employers would be wise to ensure that their reasoning for terminating an employee on FMLA leave, and their documentation of the basis for the decision, are iron-clad.

Focus on Revised FMLA Regulations: When Do Employers Count A Holiday As FMLA Leave?

With the Memorial Day holiday approaching, I am being asked by employers whether the holiday counts against the 12-week FMLA leave entitlement of employees who have requested FMLA leave.  

The answer depends upon the length of the leave.  Under the Revised FMLA Regulations that went into effect earlier this year (see 29 C.F.R. Section 825.200(h)), if an employee takes a full workweek of FMLA leave during which a paid holiday falls, the holiday counts against the employee's FMLA entitlement.  If the employee takes FMLA leave in increments of less than a full workweek, and a holiday falls on a leave day, that day does not count against the employee's 12-week FMLA leave entitlement. 

For example, if an employee requires FMLA leave for the full week of Monday, May 25, through Friday, May 29, 2009, for surgery due to a serious health condition, Memorial Day will count as an FMLA leave day.  However, if the employee only requires FMLA leave for Tuesday, May 26, and Wednesday, May 27, 2009, for continuing treatment related to a serious health condition, Memorial Day would not be counted against the employee's FMLA leave entitlement. 

Employers should keep these rules in mind as the other summer holidays--Fourth of July and Labor Day--present similar scenarios.

 

The Catch-22 of Timing: Can You Still Terminate An Employee Who Has Requested FMLA Leave?

An employer client recently told me that the company was poised to terminate an employee for a serious violation of one of the company's policies, when the employee's spouse called the employer and advised that his wife was being checked into a drug rehabilitation facility.  Should the employer move forward with the termination, or wait until the employee completes rehabilitation, returns to work, and then terminate her?  

Of course, the company was concerned about the well-being of its employee, but it also knew that it would be delaying the inevitable if it were to wait to terminate the employee.  Also, it knew that, by waiting, it might later run the risk should the employee dispute her termination that the termination would appear to be fabricated and a pretext for retaliation.

In this scenario, the employer could be damned if it did, and damned if it didn't.  The FMLA does not preclude an employer from terminating an employee on FMLA leave who would have been terminated regardless of her FMLA leave status.  However, if the company terminated the employee on the heels of her request for FMLA leave, she still might be able to claim interference with her FMLA rights and/or retaliation.  If the company terminated her following her FMLA leave, she also could claim retaliation.  What should an employer do in this situation?

1.  Ensure that the reason for termination is as iron-clad as possible.   The company should confirm that the conduct in question contravenes its policies, and evaluate what it has done in the past when faced with similar violations.  In this case, the company had terminated another employee (who had not requested FMLA leave) recently for the same violation.  Evidence that other employees who did not request FMLA were treated the same is very helpful in defending against potential FMLA claims.  Of course, if other employees who engaged in similar conduct had simply received a "slap on the wrist," the company would need to reevaluate why it was moving forward with termination in this instance.

2.  Document, document, document.  Document the policy violation clearly as soon as it occurs.  If the company decides to move forward with the termination now, the company should send a termination letter to the employee detailing the reason for the termination. 

3.  Be decent.  We hear so often from laid off employees and jurors alike that they want to punish the employer in question because the termination was communicated in a nasty, impersonal way.  The scenario described above presents a difficult dilemma, because the employee is not available to talk now, but the company does not necessarily want to postpone the termination.  The company could send a termination letter, but ask in the letter that the employee let them know when the employee is available to discuss the decision, and then follow up to discuss the termination with the employee.  In addition, the company could send its assurances to the employee that it would continue to cover her under its health insurance plan, if feasible and permitted under the health plan, for the remainder of the month.  (In the scenario above, under the employer's health insurance plan the employee's coverage would not terminate until the end of the month).  Another alternative is offering the employee some severance, or payment for a period of time of premiums for health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), in exchange for the employee signing a release of any claims against the company.

Whether the timing is right requires an individualized analysis.  By following the tenets above, employers should be able to reduce the risk that they will be sued for violating the FMLA.   

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