Employee Permitted to Combine two Separate Health Issues into one “Serious Medical Condition” Under FMLA

A federal district court in Minnesota has ruled that multiple medical conditions can be combined into a single "serious medical condition" for purposes of the FMLA as long as the two conditions are "temporarily linked" and affect "the same organ system." More ›

Department of Labor Announces Proposed Rules Expanding FMLA Leave

Today, the Department of Labor announced that it is issuing a notice of proposed rule-making to implement new statutory amendments to the Family and Medical Leave Act. The provisions specifically address military caregiver leave and airline flight crew employee leave. More ›

Court Imposes Liquidated Damages Against Employer for FMLA Interference

Calculating Family and Medical Leave Act (FMLA) leave can be a daunting task. The law provides employers with various options for determining how the 12 weeks plays out, and also sets forth various notice responsibilities, both for the employee and the employer. This proved to be a problem for one employer, however, who, while providing its employee with FMLA leave, failed to properly notify him of how it was calculating his leave, which ultimately cost the employer big. More ›

Human Resource Director’s Statements Serve as Direct Evidence of Discrimination

An employee who worked in a law firm’s marketing department took leave under the Family Medical Leave Act (FMLA). The leave was scheduled to begin just before the birth of her child and continue after the birth. While the employee was on leave, the employer decided to eliminate the employee’s position “as part of an organizational restructuring.” When the employee came to the employer’s office to remove her belongings, the employer’s director of human resources allegedly told her that she “was let go because of the fact that [she] was pregnant . . . and took medical leave.” The employee sued, alleging that she was discriminated against based upon her pregnancy, that she was retaliated against for taking FMLA leave, and that the employer interfered with her right to take FMLA leave by failing to reinstate her when her leave expired. The employer argued that the employee had no evidence to support her claims because the director’s statements were “hearsay,” (statements that were made outside of court that may not be considered as evidence). The U.S. Court of Appeals for the Seventh Circuit held that the director’s statements were admissible evidence. While the director’s statements were “hearsay,” the court found that an exception applied to allow them to be considered. Specifically, the exception allowing out of court statements or “admissions” made by a party to a lawsuit to serve as evidence was applicable. The director’s statements were “admissions” attributable to the employer because the director made them within the scope of her employment, which included regular involvement in the elimination of positions and termination of employees. Because the director’s statements were admissible, the employee had direct evidence that she was terminated because of her pregnancy, that she was fired in retaliation for taking FMLA leave, and that the employer unlawfully denied her right to reinstatement after she completed her FMLA leave. Consequently, all of the employee’s claims survived summary judgment. Human resources employees must be aware that statements they make to employees concerning the reasons they were terminated are admissible evidence that could later be used to support a legal claim. Moreover, employers should never terminate an employee because she is pregnant or retaliate against an employee because he or she takes FMLA leave.

Makowski v. SmithAmundsen, LLC, et al., No. 10-3330 (7th Cir. Nov. 9, 2011)

"11th Hour Change of Heart" Forms the Basis for FMLA Claim

As a result of the economic downturn, an employer sought to lay off various staff. A supervisor indicated that it would be “an obvious choice” to eliminate an employee in the communications department because the employee’s duties had changed significantly and the employer had stopped work on one of his core campaigns. After the employee was selected for layoff, a communications director notified the employer of his need for time off for knee replacement surgery. The employer then made a last-minute decision to lay off the communications director in lieu of the previously selected employee. The communications director sued, claiming that the employer had violated the Family and Medical Leave Act (FMLA). The U.S. Court of Appeals for the Seventh Circuit found that the record contained sufficient evidence to create triable issues where: (1) the employer had originally identified a co-worker for termination, but then selected the communications director shortly after he announced intention to take FMLA leave; (2) management backdated a memo to make it appear that the termination decision was not influenced by the leave request; and (3) the employer gave an inconsistent explanation regarding the termination. When an employer decides to terminate an employee not originally slated for layoff, it should make sure that the employment action is accurately and timely documented and that the employer’s thought process is consistent, precise and well-reasoned.

Shaffer v. American Medical Association, No. 10-2117 (7th Cir. Oct. 18, 2011)

Employee Fails to Demonstrate that Termination was act of Discrimination or Interference with Leave

An employee was terminated after she took approved Family and Medical Leave Act (FMLA) leave for surgery, but failed both to contact the employer after leave expired and to return to work. The employer’s FMLA leave policy required employees to“properly report” their absences to their department prior to the beginning of their shift each day until the employee received formal notification that FMLA leave had been approved. Failure to provide proper notification for three consecutive workdays subjected the employee to termination. Separate and apart from the FMLA issue, the employee had also complained to her supervisor twice that an African American employee was being treated unfairly due to race. Following her termination, the employee sued, claiming retaliation in violation of 42 U.S.C. § 1981, and interference and retaliation under the FMLA. The U.S. Court of Appeals for the 10th Circuit found that the only evidence presented by the employee was, at best, that of potential pretext, not of actual retaliatory intent. Employers should have handbook provisions and posted notifications about FMLA leave so that employees are aware of their rights and responsibilities. Employers should also have policies and procedures in place for communications with employees while out on leave.

Twigg v. Hawker Beechcraft Corp., No. 10-3118, (10th Cir. Oct. 13, 2011).

No Constructive Discharge Under USERRA Where Working Conditions not Objectively Intolerable and Plaintiff Failed to Show Veteran Status Was a Motivating Factor

An employee who was a paramedic joined the Marines and served three tours of duty in Iraq before being discharged from active duty. The employer allowed the employee to return to work at the same position and rate of pay as before he joined the Marines. Subsequently, the employee and his supervisor got into a verbal confrontation not relating to military service and the employee believed the supervisor treated him “dismissively.” The employee claimed to fear that the supervisor would attack him or find some pretext to fire him, but never reported this fear to anyone. The employee later requested time off pursuant to the Family and Medical Leave Act (FMLA) for treatment of his self-reported post-traumatic stress disorder (PTSD), and his employer granted the request. During his time off, the employee also filed a claim for long-term disability benefits for PTSD, which was denied on the basis that the plan did not cover disabilities caused by acts of war. The employee never returned to work, formally resigning more than a year after requesting time off under the FMLA. The employee later sued his employer and supervisor, alleging workplace discrimination and constructive discharge on the basis of veteran status, in violation of the Uniformed Services Employment and Reemployment Act of 1994 (USERRA). The U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of the employee’s constructive discharge claims because the employee failed to present a prima facie case of constructive discharge. Under USERRA, constructive discharge occurs when an employer deliberately renders an employee’s working conditions intolerable with the intent of forcing the employee to leave the employment. The employee failed to show that the conditions were objectively intolerable or that his status as a veteran was a motivating factor in any constructive discharge. Further, he never gave the employer any opportunity to correct the claimed intolerable condition before he quit; thus, the claim failed as a matter of law. Employers should be mindful that USERRA prohibits discrimination against veterans with respect to any benefit of employment on the basis of their application for membership or their service in the uniformed services, and they should take immediate action to affirmatively address acts of discrimination in the workplace to prevent potential liability under USERRA.

Employers bear Burden of Proving a Legitimate Business Reason Existed for Denying Employee Reinstatement Following FMLA Leave

A city employee took Family and Medical Leave Act (FMLA) leave as a result of suffering from multiple chemical sensitivity. When the employee was medically cleared to return to work, the employer refused to reinstate her because it could not guarantee that the workplace was safe in light of the employee’s chemical sensitivity. A few months later, the employee was terminated. The employee sued, alleging that the employer violated the FMLA when it failed to reinstate her following her FMLA leave. Under the FMLA, an employee has a “limited right to reinstatement.” Specifically, the regulations implementing the FMLA provide that “if an employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration. . . .” The trial court held that in order to prevail, the employee had to prove that she was denied reinstatement without reasonable cause. The U.S. Court of Appeals for the Ninth Circuit rejected that holding and found that under the FMLA, the burden is on the employer to prove that it had a legitimate reason for failing to reinstate the employee. Employers should always be able to articulate a legitimate business reason for denying reinstatement to employees who take FMLA leave. By ensuring that such a reason exists, employers will be able to defend against any subsequently filed lawsuit.

Employee’s Leave in Order to go on “Faith Healing” trip not Protected Under FMLA

An employer approved intermittent Family and Medical Leave Act (FMLA) leave for an employee to take care of her husband, who suffered from serious medical conditions. After three years of taking intermittent leave, the employee submitted a request to take a seven-week leave to travel with her husband on a faith-healing pilgrimage to the Philippines. The employer denied the leave based on an FMLA certification from the husband’s doctor stating that he was “presently . . . not incapacitated,” despite also receiving a doctor’s note indicating that the employee’s leave was needed so that she could physically assist her husband on the pilgrimage. When the employee failed to respond to the employer’s requests for her to return to work, the employer terminated her. The employee sued, asserting that the faith-healing pilgrimage constituted medical care under the FMLA, and that the employer’s actions constituted interference with her right to leave and retaliation in violation of the FMLA. The U.S. Court of Appeals for the First Circuit rejected the employee’s claims because: (1) no conventional medical treatment was provided to the employee’s husband during the trip; (2) the employee’s husband saw no doctors on the trip; and (3) during the trip, the employee and her husband prayed, went to Mass, spoke with others on the pilgrimage, and visited other churches and family. The court concluded that FMLA leave to care for an immediate family member does not extend to vacations during which no medical care is provided. The fact that the employee provided physical and psychological care to her husband was incidental to the vacation. This case serves as reminder that FMLA leave is meant for employees with serious health conditions or who care for a family member with a serious health condition. Accordingly, employers need not grant FMLA leave requests where the leave sought is actually a vacation.