Employer Strategies for Tracking Leave and Curbing Abuse

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August 28, 2018
Author: Jerome D. Pinn, Esq.
Organization: Wimberly Lawson Wright Daves & Jones, PLLC

What Can Employers Do to Combat FMLA Use Abuse?

Too many employers are experiencing high absenteeism rates because of employee misuse of FMLA leave. FMLA abuse is rampant in some workplaces. Fortunately for employers in this situation, there are several tools available to turn the tide and take back your workplace.

Some of the following measures might enable employers to reduce FMLA abuse and, in turn, potentially produce significant cost savings.

1. Require that employees complete a written leave request form for all absences. Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request may deter some employees from using FMLA leave for a non-FMLA qualifying reason.

2. Prepare a list of questions to ask of employees when they call in “sick”. The FMLA allows you to inquire about an employee's medical condition and their need for leave. Not only is it allowed, it is arguably necessary, in order to track employees’ usage of their 12 week FMLA entitlement.

You have the right to ask employees when they report an absence:
• What is the specific reason for your absence?
• Will you/did you see a doctor for the injury/illness?
• How many times was the employee/parent/ spouse/child seen by a health care provider?
• Was any treatment ordered?
• Have you previously taken leave for this condition? If so, when?
• When did the incapacity due to illness begin?
• When did you first learn you would need to be absent?
• When do you expect to return to work?
• Are you able to perform your normal daily work activities?

3. Enforce usual and customary call-in procedures. The FMLA allows employers to require their employees to follow the employer's call-in procedures when they will be absent. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent unusual circumstances.

4. Check in on the employee. Employers may call the employee during the absence (or have a policy under which employees call in periodically) regarding their status. This can curb FMLA abuse. When the lines of communication are open, and the employer maintains contact with the employee, experience shows that employees are more likely to come back to work sooner.

5. Certify and re-certify! One of the best tools employers can use to fight FMLA abuse is the medical certification form. Too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave.

6. Surveillance. When FMLA abuse is particularly rampant, courts have increasingly been supportive of the use of surveillance to ensure employees are being honest. Before doing so, however, make sure it is consistent with your personnel policies and any applicable collective bargaining agreements. You also have to ensure any observed activity is actually inconsistent with the employee’s leave before questioning the employee or taking adverse action. Surveillance is a sure way to get a retaliation or interference claim if handled improperly.

7. Periodically audit your FMLA policy, procedures and actual practices.

Managing Intermittent FMLA Leave
What can supervisors do to deter the inappropriate use of intermittent FMLA, yet not discourage employees from taking legitimately-needed FMLA? The following are some ideas on how to prevent abuse of intermittent FMLA:

1. Request Medical Certification
• Always request medical certification if the qualifying reason for the FMLA is a serious health condition for the employee or the employee’s spouse, child, or parent. The medical certification process is the most powerful tool in managing intermittent FMLA.

• Always include a copy of the essential job function form with the medical certification so the health care provider has a basis for responding to questions regarding the employee’s ability to work and need for time off.
• Hold employees to the 15-day time limit to provide medical certification unless they can demonstrate they have made a “good faith effort” to obtain it within the time line. In most circumstances, 15 days is a sufficient amount of time.
• Carefully scrutinize the medical certification form once  it is received.
• Check the “incapacity” questions. If there is no period of incapacity – which is necessary to meet the definition of a serious health condition – FMLA may not apply.
• In spite of the employee’s condition, is the employee still able to perform the essential functions of the job?
• Watch for conflicting information between incapacity and the employee’s ability to perform the essential functions of the job. If the health care provider marks “no” to Question 7 in Part A (Is the employee unable to perform any of his/her essential job functions due to the condition?), the health care provider is indicating that the employee can perform the essential functions of the position. Therefore, there will likely not be a need for Part B (Amount of Leave Needed) to be completed since there is no need for FMLA.
• Can you determine from the information on the medical certification the nature, frequency, and duration of the employee’s absences?
• Responses such as “as needed,” “unknown” and “PRN” (whenever necessary) are not sufficient because they do not provide specific information and should not be accepted.
• Make thoroughness the employee’s responsibility. If the certification is incomplete or insufficient, return the certification to the employee identifying (in writing) the additional information necessary to make the certification complete and sufficient. The employee should be provided seven (7) additional calendar days to obtain the necessary information.
• The employee must cooperate throughout this process and if complete and sufficient medical certification is not provided, the requested FMLA leave may be denied. In addition the employee may not use any type of paid time off, and absences incurred may be subject to corrective action.
• If the employee will need follow-up or ongoing treatment, determine whether the treatment can be scheduled around the employee’s work schedule.

2. Utilize the Recertification Process
• Request recertification of the FMLA if the employee requests an extension of FMLA, the circumstances described in the previous certification have changed significantly, or you receive information that casts doubt upon the continuing validity of the previous certification. Recertification must be requested in conjunction with an absence.
• If recertification is requested due to the number and/or nature of the absences, the employee’s FMLA attendance record can be included with the medical certification form, and the health care provider can be asked if the pattern of absences are consistent with the serious health condition and prescribed treatment plan.

3. Establish and Communicate a Formal Call-in Procedure
• Your call-in procedure should include when the employee must call in (how soon before or after the shift begins).
• Who the employee must speak with (a supervisor, department head, HR).
• Information that must be provided when calling in.
• Don’t accept “I’m taking an FMLA day” or simply “FMLA.” It is the employer’s responsibility – not the employee’s – to determine if an absence qualifies for FMLA.
• For a previously approved FMLA, require the employee to specifically reference the qualifying reason (recommended because many employees have FMLA for more than one qualifying reason) and the anticipated duration of the leave.
• Although a supervisor may feel uncomfortable asking specific personal questions, the following are acceptable questions to ask in order to determine if an absence qualifies for FMLA:

What is the specific reason for your absence today?
• Will you/did you see a doctor for the injury/illness?
• Have you previously taken leave for this condition? If so, when?
• When did the incapacity due to illness begin?
• When did you first learn you would need to be absent?
• When do you expect to return to work?
• Are you able to perform your normal daily work activities?

Employees must follow the department’s procedures for requesting leave and calling in absences and provide sufficient information to allow the department to determine whether the leave request and absence qualifies for FMLA. If the employee simply calls in sick, does not follow the department’s call in procedure, or does not provide sufficient information, the time off may qualify as FMLA protected leave.

Enforce the call in procedure consistently between FMLA and non-FMLA absences. The employee must cooperate throughout this process and if complete and sufficient medical certification is not provided, the requested FMLA leave may be denied. In addition the employee may not use any type of paid time off, and absences incurred may be subject to corrective action.

Of course, this only applies to employees approved for intermittent FMLA leave. If FMLA leave has been approved for a block of time, the employee should not be required to call-in during the approved leave period except a periodic follow-up to check on the employee and confirm the employee’s intent to return to work at the end of the approved FMLA leave. The latter should only be an issue toward the end of the FMLA period or in response to information from the employee indicating that the employee may not be able or may choose not to return to work.

4. Monitor FMLA Usage
• Track FMLA time and when requested, inform the employee of the number of hours used and the number remaining. The calendar year maximum for a full time employee is 480 hours of FMLA.
• Monitor attendance for patterns, and if identified, request recertification.
• Allow only as much FMLA as needed – an entire day off usually is not necessary for a doctor appointment.Adequate time off for the appointment and travel to the appointment must be provided, and employees should be required to work immediately before or after the appointment when appropriate.
• Require employees’ cooperation in scheduling absences. Employees must consult with their supervisors and make a reasonable effort to schedule intermittent leave for planned medical treatment or appointments so it does not disrupt operations.

FMLA is an entitlement for eligible employees which necessitate a permissive approach. Supervisors must balance deterring inappropriate use of intermittent FMLA yet not discouraging employees from taking legitimately needed FMLA. It is against the law to interfere with, restrain, or deny the exercise of (or attempts to exercise) any rights provided by the FMLA. Because of this, supervisors may feel there is not much they can do to control FMLA related absences. Individually the tips provided above may have a limited impact, but collectively, they allow supervisors to maximize productivity and curtail inappropriate use as much as possible within the parameters of the law.

As with most employment laws, we must look to the courts to interpret and apply the FMLA to specific cases. The old adage, “the devil is in the details” often applies as the courts attempt to apply the Department of Labor’s (“DOL”) FMLA regulations and Congressional intent to a wide variety of fact patterns. The following are some of the notable FMLA cases decided by the federal courts in the previous years.

A. Intermittent Leave
In Graham v. BlueCross BlueShield of Tennessee, Inc., 521 F. App’x 419 (6th Cir. Apr. 2013), Cynthia Graham was employed by BlueCross BlueShield of Tennessee, Inc., (“BCBST”) as a configuration analyst. During her tenure, there were two employee policies in force: an attendance policy and an FMLA leave policy. The attendance policy provided that an employee could face termination if he or she accrued more than five unapproved absences in a rolling 12–month period. It explicitly provided that an absence would not be considered an incident if covered under the FMLA.

In May 2010, Graham requested intermittent FMLA leave for migraine headaches. Her original medical certification estimated that the duration of leave as one episode per month, three to four days per episode. Graham’s absences exceeded this original estimate so BCBST requested a modified certification. After several modifications, Graham’s physician opined that he was unable to give a clear frequency or duration. BCBST’s FMLA administrator granted intermittent leave for a six-month period, subject to additional medical certification or recertification. After her leave approval, Graham missed 28 days of work. BCBST’s administrator requested recertification because the “frequency and/or duration” of her recent absence differed from the medical certification.

Graham returned to work but failed to provide recertification. She then began to miss work again. Eventually, BCBST terminated Graham after 26 unexcused absences following the request for recertification. Graham filed suit asserting that BCBST violated FMLA and that her initial medical certification entitled her to take leave in whatever increment she chose.

Analysis & Decision: The court recognized that FMLA may be taken on an intermittent basis, which is described as a “series of absences, separate by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelvemonth period.” The court ultimately held that Graham’s initial medical certification did not entitle her to take her remaining nine weeks of FMLA leave in the configuration of her choice. The court explained that one of FMLA’s purposes at issue – entitling employees to reasonable leave for personal medical reasons – must be effectuated “in a manner that accommodates the legitimate interests of employers.” The court continued that the FMLA’s requirement that an employee’s medical certification for intermittent leave includes the expected duration of intermittent leave serves to put the employer on notice as to how much work the employee might miss and to allow the employer to plan accordingly. The court recognized that failing to provide an estimate as to the frequency or duration of the employee’s absences on a medical recertification authorizes an employee to leave in whatever increment he or she chooses. The court stated that such a procedure would not balance the employee’s interest with those of the employer.

Lesson: A medical recertification should contain an estimate as to the frequency or duration of the employee’s absences. A medical recertification that fails to provide such an estimate does not authorize an employee to take leave in whatever increment he or she chooses.

In Lewis v. School Dist. #70, 523 F.3d 730 (7th Cir. 2008), Debra Lewis began working for the Freeburg Community School District as a bookkeeper and treasurer in September 1997. All parties agree that Ms. Lewis performed her job admirably until 2004. In 2004, both of Ms. Lewis’s parents became terminally ill. Her father died at home on May 23, 2004. On May 31, 2004, her mother came home from the hospital and needed constant care. Ms. Lewis thereafter often missed work to care for her mother at home. Ms. Lewis’s immediate supervisor was aware that Ms. Lewis was taking time off from work in order to care for her ailing parents, and he gave her permission to do so. In the 2004 fiscal year, Ms. Lewis was absent a total of 72.5 out of a possible 242 workdays.

During this time, with the encouragement of her supervisor, Ms. Lewis took home much of her bookkeeping work and worked whenever she could, including evenings or on weekends. While she was able to do much of her bookkeeping work, Ms. Lewis’s absences became a problem for the District because she was not available to answer questions during the day. The District told Ms. Lewis that she would be expected to resume a regular 8:00 a.m. to 4:00 p.m. schedule by the start of the next school year. Ms. Lewis continued to miss significant amounts of time to care for her mother. In October 2004, the District informed Ms. Lewis that she had used all of her paid sick leave and vacation time, but that she was entitled to take up to 12 weeks of unpaid leave under the FMLA.

Ms. Lewis completed all of the necessary FMLA paperwork, and began her intermittent FMLA leave. However, during the time she was taking intermittent FMLA leave, the District still asked Ms. Lewis to perform all of the functions of a bookkeeper working at home and on the weekends. She was never credited for her time spent working at home; but she was also not paid for the days on which she took FMLA leave. The District became increasingly upset about the performance issues that were caused by Ms. Lewis’s need for leave time, and it began “building a case” for termination that was unrelated to her absences. After giving Ms. Lewis a performance review that noted several areas “needing improvement,” the District decided in March 2005 to offer Ms. Lewis two options: (1) resignation, with paid insurance for the rest of the school year, or (2) permanent reassignment to a teacher’s assistant position, paid her current salary and benefits for the few months remaining in the fiscal year, but paid at a much lower teacher’s assistant salary thereafter. Ms. Lewis refused to choose one of these options, and the District decided not to reappoint her to the bookkeeper position for the following year because her performance was unsatisfactory.

Ms. Lewis requested in August 2005 that she be reinstated to her position as bookkeeper. The District denied this request, and Ms. Lewis filed a lawsuit against the District alleging, among other things, violation of the FMLA.

Analysis & Decision: The court first found fault with the District’s treatment of Ms. Lewis before she was offered FMLA leave. The court found that the District was fully aware of its obligations to Ms. Lewis under the FMLA, but decided not to inform her of those rights, but instead to build a case for her discharge. The court also found fault with the District’s conduct after Ms. Lewis was placed on intermittent FMLA leave. The court found that the District made no effort to take adequate steps to limit the impact of Ms. Lewis’s intermittent leave on the District’s operation, such as hiring a part-time bookkeeper or shifting some of Ms. Lewis’s duties to other employees. Because the District expected Ms. Lewis to perform her all of her bookkeeping functions while she was on intermittent leave, the FMLA leave granted to Ms. Lewis was “illusory.” The court also found that the performance problems cited by the District were “a direct result of the District’s failure to respond appropriately to the challenges presented by her FMLA-protected absences.”

Lessons: This case reinforces the employer’s obligations to inform employees of their FMLA rights and to designate leave as FMLA-qualifying. This case also emphasizes the employer’s responsibility to take steps to enable an employee to take intermittent leave, including hiring a part-time or temporary employee to perform the employee’s job functions.

In Jordan v. Beltway Rail Co., 2009 WL 537053 (N.D. Ill. Mar. 4, 2009), Robbie Jordan began working for Beltway Rail Company (“BRC”) in 1993, and he was working as a yardmaster in August 2006 when he asked for intermittent FMLA leave for depression and anxiety. A primary responsibility of a yardmaster is to follow company and industry safety rules and procedures while directing workers engaged in the makeup and breakup of trains and switching inbound and outbound traffic in the rail yard. Between March and July 2006, prior to the request for FMLA leave, Mr. Jordan had four incidents of formal disciplinary action taken against him related to arguments, failure to report to work on time, and failure to perform his duties. In addition, Mr. Jordan had at least ten incidents of “informal counseling” related to excessive telephone use, disorganized crew assignments, train delays, absenteeism and numerous communication issues.

On August 3, 2006, Mr. Jordan submitted a Certification of Health Care Provider from completed by his psychologist. The Certification indicated that Mr. Jordan had a serious health condition and needed intermittent FMLA leave to attend doctor’s appointments and that he would need “a day off work some weeks.” The Certification went on to state that Mr. Jordan would not be able to work on occasions when “there is actual or perceived harassment on the job,” at which times Mr. Jordan would be unable to perform “safety-type related tasks.” In response to the Certification, BRC granted Mr. Jordan up to twelve weeks of unpaid, protected leave, but refused to allow him to take the leave on an intermittent basis. BRC justified its decision because the Certification form “cited essential functions that [Jordan was] unable to perform.” On August 30,
2006, Mr. Jordan presented BRC with a note from his psychologist stating that he was now able to return to work. BRC refused to accept this note and required that Mr. Jordan’s doctor complete the company’s standard return-to-work form and informed Mr. Jordan that he would need to undergo a fitness-for-duty exam before he could return to work.

On September 19, 2006, Mr. Jordan brought the company’s return-to-work form completed by his psychologist to BRC’s human resources manager. A disagreement between Mr. Jordan and the human resources manager occurred over some of the language on the form, and BRC accused Mr. Jordan of “quarrelsome, discourteous, and insubordinate behavior” toward the human resources manager and his supervisor. On October 2, 2006, Mr. Jordan attended a return-to-work physical exam arranged by BRC. After the exam, the physician referred Mr. Jordan for a psychological exam concerning his mental condition. Mr. Jordan did not make an appointment for his psychological exam. Instead, on November 3, 2006, Mr. Jordan filed a lawsuit against BRC, alleging violations of the FMLA.

Analysis & Decision: As an initial matter, the court found that BRC’s decision to place Mr. Jordan on full FMLA leave did not violate the substantive provisions of the FMLA. The fact that Mr. Jordan’s doctor stated on the Certification form that he would be unable to perform “safety-type related tasks” when he was “upset or feeling harassed” was key. Because the event that would trigger Mr. Jordan’s inability to perform essential functions of his job could happen at any time without notice, BRC was justified in requiring that Mr. Jordan take full leave instead of intermittent leave. However, the court found fault with BRC’s refusal to reinstate Mr. Jordan to his position when his doctor provided him with a note stating that “Mr. Jordan is hereby released from FMLA. Mr. Jordan is able to return to work.” The court also found that BRC violated the FMLA by requiring a return-to-work examination by its own doctor prior to allowing Mr. Jordan to return to work.

Lesson: If the employee’s doctor certifies that the employee cannot perform one or more essential functions of the position, an employer may be able to deny intermittent leave and require the employee to take full FMLA leave instead. This court decision, however, is very fact-specific and should not be made without advice of counsel.

In Valdivia v. BNSF Railway Co., 2009 WL 352604 (D. Kan. Feb. 12, 2009), David Valdivia began working for the BNSF Railway Company in 1992. Since 2003, Mr. Valdivia worked as an inbound electrician for BNSF in Kansas City, Kansas. In 2002, Mr. Valdivia’s doctor diagnosed Mr. Valdivia with migraine headaches and prescribed medication. Mr. Valdivia also treated his migraines by going into a dark room, closing all doors and lying down to go to sleep. In 2005, Mr. Valdivia’s doctor prescribed a drug called Maxalt to treat his migraine headaches. This medication causes grogginess or a “hangover effect,” and sometimes the medication caused Mr. Valdivia to fall into a deep sleep for 24 to 27 hours. Based on this situation, BNSF certified Mr. Valdivia for intermittent FMLA leave for his migraine headaches, beginning in March 2006. BNSF notified Mr. Valdivia as follows: “In order for absences for this reason to be designated as FMLA, you must call in to report that you will not be able to work that day and you must advise that it will be an FMLA day.” Mr. Valdivia understood this procedure and followed it on many occasions. Specifically, when Mr. Valdivia took the Maxalt, he would call in prior to his shift to report that he would not be at work.

On August 19, 2006, Mr. Valdivia took Maxalt twice in a six-hour period to treat a migraine headache. The second dose knocked him out. Mr. Valdivia’s alarm clock did not wake him and he slept through his entire shift (18 hours in total). Mr. Valdivia was awakened the next day by a phone call from his union representative. Mr. Valdivia then phoned his foreman and BNSF and requested FMLA leave for the shift he had missed. The foreman told Mr. Valdivia that he could not grant FMLA leave because Mr. Valdivia had called in after the shift had ended and was therefore considered absent without authority (“AWOL”) for eight hours. Mr. Valdivia attempted to shift blame to his wife, saying that he had expected her to awaken him for work but she failed to do so. After an investigation, BNSF determined that Mr. Valdivia as not entitled to FMLA leave because he had not provided advance notice. As a result of its findings, BNSF imposed a suspension of 20 days and a probation period of one year on Mr. Valdivia. Mr. Valdivia filed a lawsuit against BNSF, asserting that the discipline he received for missing his shift violated his rights under the FMLA.

Analysis & Decision: The court analyzed the FMLA regulations which discuss the employee’s need to inform the employer of the need for FMLA leave “as soon as practicable.” In Mr. Valdivia’s case, the court found that “as soon as practicable” meant as soon as he reasonably knew that he would be unable to report to work because of a migraine headache. Looking at the facts and circumstances on August 19, 2006, the court found that Mr. Valdivia should have called when he took the second dose of Maxalt, because it was foreseeable at that time that the medication would render him unable to report to work that night. The court found that BNSF’s call in requirement was reasonable in Mr. Valdivia’s case, and that Mr. Valdivia was able to abide by this requirement. Accordingly, the court dismissed Mr. Valdivia’s FMLA claim.

Lesson: Although the need for intermittent leave can place a burden on the employer, especially in cases where the need is foreseeable only hours before the employee’s shift (as in the case of migraines), the employer nonetheless can establish reasonable notice requirements on the employee and the courts will uphold these requirements.

B. Cases on Interference With Employees’ FMLA Rights
In Wojan v. Alcon Laboratories, Inc., 2008 WL 4279365 (E.D. Mich., September 15, 2008), Rebecca Wojan became a sales representative for Alcon Laboratories, Inc. in Detroit in 2001. The performance of sales representatives was measured in part subjectively (20%), based on the district manager’s assessment of performance, and in part objectively (80%) by measuring performance against certain sales quotas. During her employment, Ms. Wojan won numerous sales awards and was consistently rated as a high performing employee. Then, in October 2004, Ms. Wojan took a maternity leave under the FMLA, and she returned to work in January 2005. When Alcon issued its 2005 annual sales quotas and rankings (which ran through December 1, 2004), Ms. Wojan’s ranking dropped dramatically due to her absence while on maternity leave. Consistent with its policy, Alcon did not modify Ms. Wojan’s quota to account for her maternity leave. Ms. Wojan complained that the quota was unfair because she was out of work for three months of maternity leave, and she complained that she felt she had been targeted and penalized for taking maternity leave. Alcon maintained that there were no exceptions made to the quota for any reason.

Ms. Wojan was placed on a 90-day performance improvement plan (“PIP”). Ms. Wojan complained that the PIP was unfair because the quotas for fiscal year 2005 were so high they were unattainable for her. When the quotas and rankings for fiscal 2005 were calculated, Ms. Wojan once again scored low, due to her FMLA leave in December 2004 and January 2005. Alcon terminated Ms. Wojan’s employment on March 9, 2006, based on her poor sales numbers in fiscal years 2004 and 2005. Ms. Wojan filed a lawsuit against Alcon asserting, among other things, that Alcon had interfered with her rights under the FMLA and had retaliated against her for exercising her FMLA rights.

Analysis & Decision: Alcon filed a motion for summary judgment in the case, arguing that Ms. Wojan’s termination was based on objective standards that were applied to all sales persons, and that these sales quotas are not adjusted for any employee for any reason. Since Ms. Wojan was treated the same as all other employees, Alcon asserted that it had not acted in a discriminatory manner toward Ms. Wojan.

The court rejected Alcon’s arguments. The court cited to FMLA regulation 825.220(c) which states that employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. Ms. Wojan argued that her FMLA leave caused her to have a poor performance score, which led to her being placed on a PIP, which affected her ability to improve her performance score. Ms. Wojan asserted that she was therefore penalized by Alcon for taking FMLA leave. The court agreed with Ms. Wojan, stating that Alcon’s position was “in direct contravention of FMLA provisions which prohibit the taking of FMLA leave as a negative factor in employment actions.” The court therefore denied Alcon’s motion for summary judgment and allowed Ms. Wojan to proceed to trial on her FMLA interference claim.

Lesson: Performance standards, even though they are “objective” in nature, may have to be adjusted to account for an employee’s absence due to FMLA leave.

In Brown v. Nutrition Management Svcs. Co., 2009 WL 28118 (E.D. Pa. Jan. 30, 2009), Melissa Brown was hired in 2002 as the food service director of Plymouth House, a nursing home in Pennsylvania. In August 2004, Plymouth House decided to contract out its food service and hired a company named Nutrition Management to manage certain aspects of the food service. Nutrition Management hired Ms. Brown, who continued to serve as food service director at Plymouth House. In October 2004, Nutrition House terminated Ms. Brown after she informed Nutrition Management that she was pregnant. Ms. Brown filed a lawsuit claiming that her termination unlawfully interfered with her right to take leave under the FMLA. The case went to trial and the jury found that Ms. Brown was eligible for FMLA leave and that Nutrition Management had interfered with her rights under the FMLA. The jury awarded her $74,000 in back wages. Ms. Brown filed a post-trial motion to amend the jury’s judgment to include, among other things, an award of $80,655.82 in liquidated damages because Nutrition Management’s actions in Ms. Brown’s case were not in good faith.

Analysis & Decision: The court began its analysis by explaining that the FMLA provides that a prevailing party is entitled to liquidated damages equal to the amount of the damages awarded for lost compensation plus interest unless the defendant’s “act or omission which violated [the FMLA] was in good faith and [the defendant] had reasonable grounds for believing that the act or omission was not a violation.” Nutrition Management argued that it had a reasonable belief that Ms. Brown’s termination did not violate the law because it believed that Ms. Brown was not eligible for FMLA because she had only worked for Nutrition Management for less than 3 months. Because Ms. Brown had not worked for the company for 12 months or 1250 hours, Nutrition Management decided she was ineligible for FMLA. The court held that Nutrition Management’s determination was incorrect because the FMLA applies to any successor in interest of an employer otherwise covered by the statute. The court cited to the DOL regulations which identify eight factors that determine whether an employer is considered a successor in interest under the FMLA. Because Nutrition Management did not research the successor in interest issue itself or hire an attorney to research the requirements of the FMLA, the court found that Nutrition Management had “no reasonable ground to believe Brown’s termination was not a violation.” Accordingly, the court found that Nutrition Management did not act in good faith, and Ms. Brown was entitled to liquidated damages in the amount of $80,655.82 ($74,000 in back pay and pre-judgment interest of $6,655.82).

Lesson: The FMLA places the burden on the employer to understand and abide by the requirements of the FMLA, and “ignorance of the law” is no excuse. The court in this case expected the employer to consult legal counsel prior to making its decision to terminate the employee to be sure its FMLA analysis was correct.

C. Cases on FMLA Retaliation
In Baldwin v. Duke Energy Business Services, LLC, 2013 WL 6056578 (W.D. N.C. Nov. 15, 2013), Ernie Baldwin was hired by Duke Energy Business Services (“Duke”) in 2005 as a senior application analyst. In March 2009, Baldwin was transferred to another department, but he performed the same duties. It was undisputed that prior to Baldwin’s transfer he had performance issues during his years. In particular, Baldwin had problems coming into the office and being available for office discussions, taking initiative, being proactive, and so forth. After his transfer, similar performance issues were noted. These issues were addressed but not successfully corrected. In the annual appraisal, Baldwin was said to have “partially met” expectations. Baldwin submitted a rebuttal to the appraisal, and then took approved FMLA leave on January 19, 2010, which had been anticipated for several months.

After Baldwin’s FMLA leave expired, his supervisor learned that Baldwin had submitted his Return to Work form to Duke’s leave administrator and that such form contained a recommendation that Baldwin work from home until April 30, 2010. Such recommendation did not, however, explain why Baldwin was unable to come into the office. Duke, however, honored such request and allowed him to work from home through the end of April 2010. During such period of sanctioned working from home, Baldwin was presented with an updated “Working Expectations,” which included touching base with his supervisor daily to update her on his work progress and to ensure that he working as scheduled.

Upon a request from Baldwin’s physician, Duke further extended Baldwin’s ability to work from home through June 24, 2010, based on a need to sit for less than 30 minutes at a time. Beginning May 4, 2010, one of Baldwin’s supervisors sought information from Baldwin concerning his sitting restriction so that Duke could determine what, if anything, could be done to enable Baldwin to work in the office. Such information and consent were never provided. Three weeks after Baldwin’s medical certification expired, Baldwin sought a further extension of his work-from-home privilege through August 19, 2010. Citing problems with Baldwin’s performance and need for supervision, Duke declined this request and informed Baldwin of its ability to assist with his needs, and instructed him to report to work in the office.

On August 2, 2010, the Director of Employee Relations spoke with Baldwin concerning his return to work and told him that his need to not be seated more than 30 minutes would be accommodated when in the office and that he was expected to return to work August 4, 2010. Such expectation was then restated in an email sent to Baldwin; however, Baldwin emailed back that his understanding of that conversation was different and that to defer to his attorney and Duke’s in-house counsel as to what to do next. The Director of Employee Relations then replied to Baldwin that he was expected to report to the office as instructed, to which no reply was received. Baldwin failed to return to work on August 4, 2010. Duke’s in house counsel called Baldwin’s attorney and informed her that Duke expected Baldwin to return on August 6, 2010. Baldwin did not return, and he was terminated on August 10, 2010.

Baldwin filed suit and alleged that he was subjected to adverse employment because he took FMLA leave. He also contended that the less than positive performance appraisal and the heightened scrutiny of his work and the requirement of daily meetings resulted from taking FMLA leave Analysis & Decision: The court disagreed with Baldwin. The court noted that his performance issues predate his request for and taking of FMLA leave.

The court continued that where an employer’s inadequate work performance predates the protected activity of taking FMLA leave, that employee cannot establish a causal link between the protected activity and the adverse employment action. The court stated that simply taking FMLA leave does not prevent an employer from taking adverse action against an employee justified by other work-related conduct.

Lesson: Before a plaintiff can be successful on such a claim, he or she must establish that “but for” taking FMLA leave, he/she would not have been discharged or given a less than stellar evaluation. In Bryant v. Dollar General Corp., 538 F.3d 394 (6th Cir. 2008), Martha Bryant worked for Dollar General as a senior programmer analyst in the financial marketing department. In 2002, Ms. Bryant was diagnosed with Type II diabetes, high blood pressure and a heart condition, and she made her supervisors aware of these health conditions. In early 2004, Dollar General assigned Ms. Bryant to a large project that was running behind schedule and missing deadlines. In early May 2004, Ms. Bryant completed paperwork for FMLA leave, and shortly thereafter, Dollar General began a disciplinary process against her, allegedly for her involvement in an office argument. Ms. Bryant took FMLA leave from May 12 to 24 and May 19 to May 23, 2004, and Dollar General fired her on May 27, 2004. Ms. Bryant testified that at the time Dollar General fired her, a supervisor commented on her health problems, stating that “[b]ecause of your health, I don’t think you can do the job.”

Ms. Bryant filed a lawsuit against Dollar General alleging, among other things, that the company had retaliated against her for taking FMLA. The jury returned a verdict against Dollar General on the retaliation claim, and awarded Ms. Bryant $73,942.68 in damages. Dollar General appealed the verdict on the ground that the statutory language in the FMLA does not bar an employer from firing an employee because that employee took FMLA leave. Dollar General argued that the relevant statutory text pertains only to situation in which an employee has “oppos[ed] any practice made unlawful” by the FMLA. See 29 U.S.C. § 2615(a)(2).

Analysis & Decision: The court rejected Dollar General’s argument on the statutory meaning of the FMLA’s retaliation provision. The court explained that Dollar General made a strictly textual argument that the FMLA does not prohibit retaliation against employees who exercise FMLA leave, the court found that Dollar General’s position in this regard conflicts with the DOL’s regulations implementing the FMLA. Section 825.220(c) of the FMLA regulations states that “[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.” The court also reviewed the decisions of other federal circuit courts, all of which have observed that the FMLA was clearly intended to provide protection against discharging or discriminating against an employee who takes FMLA leave. Accordingly, the court upheld the jury’s verdict on Ms. Bryant’s FMLA retaliation claim.

Lesson: The Sixth Circuit (which is the federal circuit court covering cases in Tennessee) has joined the majority of the federal circuits in holding that retaliation for exercising FMLA rights and/or taking FMLA leave is a viable claim. In so holding, the Sixth Circuit showed a reluctance to enforce an employer’s strictly textual arguments in interpreting the FMLA.

In Dotson v. Pfizer Inc., 2009 WL 532535 (4th Cir. Mar. 4, 2009), Pfizer terminated James Dotson in 2003 shortly after he and his wife returned from Russia with their newly-adopted child. Prior to his termination, Mr. Dotson had worked at Pfizer in Raleigh, North Carolina for approximately fifteen years. He began his career there in 1988 at an entry-level sales position. In 1991, he was promoted to District Manager; seven years later he became a Regional Manager responsible for more than 100 sales representatives. In early 2003, Mr. Dotson and his family began working with an adoption agency to adopt a child from Russia. Mr. Dotson spoke with a Pfizer human resources representative about taking leave during the adoption process. The HR representative told Mr. Dotson about using his accrued vacation time and the applicability of FMLA benefits. Mr. Dotson left for Russia using his accrued vacation time to cover his absence. On this first trip to Russia, Mr. Dotson took a case of “starters” of the antibiotic Zithromax to the orphanage in Russia. During his performance review after his first trip to Russia, Mr. Dotson’s two immediate supervisors informed him that they were unhappy with his job performance and expressed concern about his use of the Zithromax. Shortly thereafter, Mr. Dotson left with his wife for a second trip to Russia.

Pfizer then began an evaluation of Mr. Dotson’s actions. Pfizer was concerned that Mr. Dotson’s use of the Zithromax could be viewed as a prohibited quid pro quo with the Russian orphanage. Pfizer concluded that Mr. Dotson’s conduct warranted discharge. Pfizer therefore terminated Mr. Dotson on November 11, 2003 - less than three weeks after Mr. Dotson and his wife returned from Russia with their adopted child. Mr. Dotson filed suit against Pfizer alleging interference with his FMLA rights and retaliation for taking FMLA leave. The case went to trial and the jury found in favor of Mr. Dotson. The jury awarded Mr. Dotson $1,876.00 on his FMLA interference claim and $331,429.25 on his retaliation claim. The district court awarded Mr. Dotson $333,305.25 in statutory liquidated damages, $375,000.00 in attorneys’ fees, and $14,264.88 in costs. Pfizer appealed the damages awards.

Analysis & Decision: The Fourth Circuit analyzed a number of issues related to this case. Pfizer argued that Mr. Dotson was not on FMLA leave because he never specifically asked to be placed on FMLA leave after the HR representative told him about his FMLA rights. The court rejected the employer’s argument, pointing out that the FMLA places the burden on the employer to designate leave as FMLA, and that Mr. Dotson had provided sufficient information to Pfizer to allow the employer to conclude that his leave was FMLA qualifying.

The appeals court also found that there was sufficient evidence to allow a jury to conclude that there was a retaliatory motive in Pfizer’s decision to terminate Mr. Dotson. Pfizer claimed that it fired Mr. Dotson because his delivery of the Zithromax to the Russian orphanage created an impression of prohibited quid pro quo which could have serious repercussions for Pfizer. Mr. Dotson, however, was able to cast doubt on Pfizer’s stated reason in a number of ways, including that no one who knew in advance about Mr. Dotson’s plan to donate the Zithromax took any action to stop him. The appeals court examined the damages awarded to Mr. Dotson, and affirmed each one, noting only that each of the amounts should be increased by adding pre-judgment interest.

Lesson: There are many lessons in this case, including perhaps most importantly that even though the actual damages for interference with FMLA rights may be small, the damages for a retaliation claim in the same case can be much higher. In this case, the jury concluded that Mr. Dotson’s actual damages for Pfizer’s interference with his FMLA rights amounted to only $1876.00, which represented pay for work that Mr. Dotson performed at Pfizer’s request while he was on FMLA leave. The jury however, awarded a much larger sum, $331,429.25, as compensatory damages for retaliation. Because the jury believed there was a retaliatory motive in the decision to terminate Mr. Dotson’s employment, Mr. Dotson was entitled to liquidated damages, which doubled the amount of his award. Employers should learn from this case that retaliation claims are often much more dangerous than the underlying violation of the FMLA.

D. Other FMLA Cases
In Ahmed v. The Salvation Army, 2013 WL 6851512 (5th Cir. Dec. 31, 2013), Ahmed informed her supervisors at The Salvation Army that she needed surgery for a heart-related condition and would be missing work later that year. She requested information about taking leave under the FMLA, and the The Salvation Army provided her with paperwork to complete, including a “Certification of Health Care Provider” form. Ahmed submitted two incomplete versions of the certification form. After each submission, The Salvation Army advised her that it could not approve her FMLA leave without a completed form.

After her second incomplete submitted, The Salvation Army specifically explained that the required information included whether she would be able to perform some or all of her job functions and her expected period of incapacity. Beginning on November 29, Ahmed was absent from work. After she missed three days of work, The Salvation Army advised her that failure to submit a completed certification form would result in termination of her employment. Ahmed never submitted a completed form. After 23 days of unapproved absences, The Salvation Army terminated Ahmed’s employment. Ahmed filed suit alleging violations of the FMLA.

Analysis & Decision: The district court granted summary judgment to The Salvation Army. The court held that since the employee never submitted a completed certification form, the employer’s duty to provide protected FMLA leave was never triggered and she was not entitled to FMLA’s protections. In addition, the court noted that The Salvation Army properly complied with the FMLA and its regulations by informing Ahmed that her certification was incomplete, specifying in writing what information was needed, and providing her with more than seven calendar days to cure the deficiency. The Fourth Circuit affirmed the district court’s decision.

Lesson: If an employee does not complete his/her FMLA paperwork, the employer should follow-up with the employee by informing the employee that his/her paperwork is incomplete, specify in writing what information is needed, and provide at least 7 calendar days to cure the deficiency. If an employer takes these steps, it will be much more difficult for an employee to establish a FMLA violation.

In Darst (Bankruptcy Trustee) v. Interstate Brands Corp., 512 F.3d 903 (7th Cir. 2008), Krzysztof Chalimoniuk worked for Interstate Brands Corporation (“IBC”, a manufacturer of food, for fifteen years before he was terminated for excessive absenteeism. Mr. Chalimoniuk is an alcoholic and he sought treatment for that condition in his final days working at IBC. IBC had a points-based system for tracking and disciplining employees for absenteeism. No points are accumulated, however, for an absence covered by FMLA. Prior to July 29, 2000, Mr. Chalimoniuk had accumulated twenty-three points. Under the company’s policy, accumulating twenty-four or more points results in discharge.

On the evening of July 28, 2000, Mr. Chalimoniuk, who had been wrestling with alcoholism for some time, stopped on his way home from work and purchased a large quantity of alcohol. On Friday, Saturday and Sunday, he drank enough alcohol to lose his memory for two or three days. Mr. Chalimoniuk was scheduled to work on Monday, July 31, 2000, Wednesday, August 2, 2000, and Thursday, August 3, 2000. Mr. Chalimoniuk missed work on July 31. On August 1, Mr. Chalimoniuk called his doctor’s office but it was closed. On August 2, he called his doctor’s office again, and his doctor referred Mr. Chalimoniuk to a hospital for treatment of his alcoholism. On August 4, Mr. Chalimoniuk was admitted to the hospital for treatment, and remained there through August 10, completing his treatment.

Mr. Chalimoniuk requested FMLA paperwork from IBC, and IBC provided him with a Certification of Health Care Provider form on August 7. Mr. Chalimoniuk returned the form, completed by his doctor, on August 11. Mr. Chalimoniuk’s doctor listed the dates of his FMLA “serious health condition” as “7/29 - 8/11. Return on 8/14.” IBC, however, questioned whether Mr. Chalimoniuk actually received any treatment by his physician prior to entering the hospital on August 4. IBC ultimately determined that Mr. Chalimoniuk was not entitled to FMLA leave until he entered the hospital, and that his absences on July 31, August 2 and August 3 were not covered by FMLA. This meant that Mr. Chalimoniuk accumulated 10 more attendance points, putting him over the 24- point limit. IBC terminated Mr. Chalimoniuk’s employment on August 15, 2000 for violation of its attendance policy. Mr. Chalimoniuk filed a lawsuit against IBC claiming that his discharge constituted wrongful denial of FMLA benefits.

Analysis & Decision: In its analysis of this case, the court spent considerable time examining the FMLA definitions of “serious health condition,” and in particular what “treatment” by a health care provider means in the context of alcoholism. The court concluded that there was no disagreement between the parties over two operative facts: Mr. Chalimoniuk was absent from work on July 29, August 2 and August 3, 2000, and that he did not commence his treatment for alcoholism at the hospital until August 4, 2000. At dispute was whether Mr. Chalimoniuk’s calls to his doctor on August 1 and 2 constituted “treatment” as the term is defined by the FMLA. Ultimately, the court decided that because Mr. Chalimoniuk produced no evidence that he received any treatment as the term is defined by the FMLA on the three work days in question, he was not entitled to FMLA leave on those dates. Because Mr. Chalimoniuk had exceeded the number of points allowed under IBC’s absenteeism policy, the court found that IBC was free to terminate his employment without running afoul of the FMLA. Mr. Chalimoniuk’s lawsuit against IBC was dismissed.

Lesson: This is a case that could have been decided in favor of either party. The Seventh Circuit is known as being fairly conservative in its treatment of FMLA and Americans With Disability Act issues, and the court worked very hard to try to decide whether Mr. Chalimoniuk was receiving treatment prior to entering the hospital. The employer in this case took a risk by not accepting the doctor’s judgment on the FMLA leave dates he specified on Mr. Chalimoniuk’s Certification form. Another circuit court might have decided this case in Mr. Chalimoniuk’s favor. Situations involving alcoholism and substance abuse present especially difficult issues, and legal counsel should be consulted prior to making a decision like the one IBC made in Mr. Chalimoniuk’s case.

In Peters v. Gilead Sciences, Inc., 533 F.3d 594 (7th Cir. 2008), Gilead Sciences’ employee handbook contained the company’s policy on FMLA leave. The policy permitted employees to take FMLA leave if they met two requirements: (1) had worked at the company for at least 12 months; and (2) had worked at least 1250 work hours in the previous 12 months. The company policy did not include the requirement allowed under the FMLA that to be eligible for FMLA leave, an employee’s worksite must have at least 50 employees within a 75-mile radius. See 29 U.S.C. § 2611(2)(B)(ii).

Steven Peters began working as a Therapeutic Specialist for Gilead in July 2001. He suffered a work-related shoulder injury which eventually required corrective surgery. He took what he thought was FMLA leave from December 5 through December 16, 2002. Gilead sent Mr. Peters a letter confirming his FMLA leave, and outlining his reinstatement rights. This letter did not inform Mr. Peters about the requirement that he work in a Gilead facility where at least 50 employees worked within a 75-mile radius in order to qualify for FMLA leave. Mr. Peters returned to work on December 16, 2002, but needed a second FMLA leave on March 4, 2003. This second leave lasted until May 5, 2003. Gilead then proceeded to miscalculate the number of days of Mr. Peters’ FMLA leave, and terminated him before his 12 weeks of protected leave had in fact expired. Mr. Peters filed a lawsuit against Gilead, based on the miscalculation of his FMLA leave.

After the lawsuit was filed, Gilead realized that Mr. Peters did not work at a company facility which had at least 50 employees within a 75-mile radius. Gilead argued that Mr. Peters was not eligible for FMLA leave and that his claim should therefore be dismissed. In response, Mr. Peters amended the complaint to add a state claim for promissory estoppel, based on his reliance on the language in the handbook and the company’s FMLA letter, neither of which asserted the “50/75 rule.”

At the district court level, the court agreed with Gilead, and held that Mr. Peters could not sustain the promissory estoppel claim. The Seventh Circuit Court of Appeals, however, reversed the district court, allowing Mr. Peters promissory estoppel claim to survive. The appeals court would not allow Gilead to rely on the FMLA “50/75 rule” because it failed to state the rule in its FMLA policy or in its letter to Mr. Peters describing the conditions of his FMLA leave.

Lessons: The courts will enforce an employer’s more generous FMLA policies using state law contract theories. Employers should therefore be careful when drafting FMLA policies and FMLA form letters to avoid inadvertently creating greater FMLA rights for their employees.

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