It’s an HR professional’s nightmare: getting sued over the improper administration of FMLA leave. And it really happens, even to well-meaning HR teams. Here are some recent case examples highlighting the importance of getting FMLA leave right.
Lynch v. Largo, Florida: Retaliation?
Fire inspector Lynch worked for the city of Largo, Florida. He suffered from epilepsy, which qualified as a serious health condition under the FMLA. Lynch was approved for intermittent leave on account of side effects of new medication he was taking.
He was fired for time card falsification. The catch was that the termination decision was made immediately after his last use of intermittent leave. This was a risk factor for the employer – the timing of the decision linked it to the FMLA-related absence. The other problem the employer will have is that they did not follow their own normal practice of first asking the employee to correct time card mistakes.
He is suing for retaliation, and it’s now going to trial.
“A lot of these retaliation claims arise in the context of an employee who has a medical condition or health condition which requires them to be intermittently absent. The employer or the supervisor becomes very frustrated. Coworkers, because their obligation to take up the slack or cover for someone on an unplanned basis (intermittent absences), become angry. And the employee loses their job. A lot of these retaliation claims are involving intermittent leave.” Charlie Plumb explained in a recent CER webinar.
The frustration level is a big issue for employers because it can cause missteps, given that “the FMLA prohibits an employer from treating unfairly or retaliating against individuals because they exercise their right under FMLA.”
Graham v. Blue Cross Blue Shield of Tennessee: Absences not matching medical certification
In Graham v. Blue Cross Blue Shield of Tennessee, the employee’s original medical certification for intermittent leave advised that absences would occur approximately once per month. When the employee took FMLA intermittent leave for migraines four times in a month, the employer sought re-certification (since the absences were not consistent with what the medical certification showed). They asked the employee to provide a re-certification that was consistent with the new need for additional absences.
Graham did not get the re-certification. When no re-certification was provided to support the increased frequency of absences, the employer terminated him. Graham sued, but the court found that the employer was entitled to discharge the employee for unexcused absences.
This highlights the fact that the employer has a right to ask for re-certification for the increased frequency. Since the employee did not provide the recertification, the employer has the right to treat those absences like any other and fire the employee in accordance with their attendance policy. However, employers still need to follow the process. Ask for the re-certification, don’t simply terminate because the absence pattern doesn’t match.
Poling v. Core Molding Techs., Inc.: FMLA Fraud?
Poling was a maintenance employee approved for intermittent leave on account of a neurological condition. For one absence, he left a telephone message: “Terry Poling, night shift. FMLA”. The employee did not report to work. Telephone call records show that the call came from the employee’s lake cabin, not his home. The employer advised the need for documentation that the absence was related to his medical condition.
Despite repeated requests, the employee was unable to provide medical documentation that the work absence was related to his medical condition, and he was fired. He sued for retaliation. The firing was upheld by the court because he did not provide adequate notice nor documentation.
This highlights the fact that employers have the right to require that absences used under the FMLA umbrella really be for FMLA purposes (and to do otherwise constitutes fraud).
Employers should also have a clear policy that outlines what the procedures are when calling in for an intermittent, unplanned FMLA leave. And they should clearly explain expectations in terms of providing documentation for absences.
Ballato v. Comcast Corp.: The Importance of Call-In Procedures
Ballato was approved for intermittent FMLA leave based on chronic fatigue and depression. However, the employee did not contact the supervisor or return any of the employer’s calls when he failed to report to work for 3 consecutive shifts. The employee’s absence was treated as a voluntary resignation, per the company policy. They had a call-in requirement as well. The company even went beyond their requirements and contacted the employee directly, but got no response. The employer terminated employment.
The evidence was firmly against Ballato:
- Comcast had a call-in requirement that was not followed.
- Comcast also had a policy that 3 no-call, no-shows would be considered a resignation.
- Ballato did not offer any justification for the absence nor for ignoring the call-in requirement nor for not returning the employer’s calls.
The termination was deemed legal. This highlights the importance for employers to have and consistently apply call-in policies for employees. Be sure employees taking any kind of leave understand their obligations.
The above information is excerpted from the webinar “FMLA Intermittent and Reduced Schedule Leave: Master Top Challenges When Managing Frequent or Unexpected Absences.” To register for a future webinar, visit CER webinars.
Attorney Charlie Plumb represents management in all phases of employment law and labor relations and also serves as leader of McAfee & Taft’s Labor & Employment Group.