The FMLA Blog

Unfulfulled Warnings of Discipline Failed to Establish FMLA Interference Claim

In McTigue v. Spokane Transit Authority, No. CV-04-064-FVS, 2006 U.S. Dist. LEXIS 74873 (E.D.Wash. Oct. 16, 2006) the court found that the employer's repeated warnings to Mr. McTigue that he would be disciplined if he continued to miss work without authorization failed to demonstrate that the employer interfered with the employee's FMLA rights because unfulfilled warnings do not constitute adverse actions, a necessary element of an FMLA interference claim in the Ninth Circuit.  In that case, the employee's request for FMLA leave for heart by-pass surgery was granted.  He was absent from February 18, 2001, until October 24, 2002.  Between that date and June 15, 2006, he missed over 300 additional days of work.  Some absences were covered by the FMLA; many were not.  The warnings involved these latter absences.

Comment: To establish an FMLA interference claim many courts require that the employee initially prove that they suffered from an adverse employment action.  There is a split in the federal appellate courts whether an adverse action requires, for example, issuance of discipline or whether a threat to issue discipline is sufficient.  The McTigue decision ignores the FMLA's definition of "interference" with the exercise of FMLA rights as discouraging an employee from using FMLA leave.  An employee who was repeated threatened with discipline for taking, in some instances, FMLA leave would appear to fall within the FMLA's protection from interference.  All federal sector variants of the FMLA prohibit employers from making intimidating, threatening, or coercive actions for exercising FMLA rights. 

Ability to Resume Full Duties is Not Required in Return to Work Certification

In Carpo v. Wartburg Lutheran Home for the Aging, No. 05 CV 1169 (JG), 2006 U.S. Dist. LEXIS 74856 (E.D.N.Y. Oct. 16, 2006), the employer's policy required that employees returning from FMLA leave provide a doctor's certification that the employee was able to resume full duties.  On the expiration of 12 weeks of leave the employee returned with a handwritten doctor's note on a prescription slip reading: "Pt may attempt to return to work on 2/3/04."  The employer found the note unacceptable.  The employee was subsequently fired.  Carpo sued alleging interference with her FMLA right to return to work by her employer's refusal to accept her return to work certification.

The Court found the fitness-for-duty certification was sufficient as a matter of law.  DOL regulations provide that the certification "need only be a simple statement of an employee's ability to return to work."  29 CFR 825.310(c).  The court rejected the employer's argument that, to be valid, a certification attesting to the fitness for duty of an employee returning from FMLA leave must contain a definitive statement that an employee is able to return to her "full duties."  According to the court:

A simple statement that the employee can return to work, possibly including qualified language and possibly excluding specification of the level of work an employee is capable of, is all that the regulation requires.  Accordingly, the present of words like "attempt" and the absence of phrases like "full duties" in Carpo's not is not fatal...

The court observed that a definitive statement that an employee is able to return to her "full duties" is not supported by the plain language of the statue and DOL regulations.  The regulations, the court continued, "contemplated the presence of qualified, precatory, or broad language in a valid note," because it provides a procedure to clarify such notes and prohibits the employer from delaying the employee's return to work while such clarification is sought.   

The policies behind the FMLA, inadequate job security for employees with serious health conditions that prevent them from working for temporary periods, also supported the courts conclusion.  The court explained:

If accepted, Wartburg's interpretation of 29 CFR 825.310(c) would subvert this purpose.  Employers would be permitted to reject a doctor's certification simply the doctor had written, "It is my believe that employee can return to work," or "Employee likely can return to work safely, but should be careful and attentive."  In implementing the FMLA, the Secretary of Labor did not intend to make an employee's job security subject to he caprice of the language in a doctor's note, or to empower employers to play "gotcha" when notes fail to include talismanic phrases.  To the contrary, it has advanced the Congressional goal of providing job security for those employees who suffer from serious but temporary health conditions by requiring only a "simply statement of the employee's ability to return to work"--and nothing more--from the doctor.

The court also opined that, as written, the note satisfied the more demanding standard advocated by the employer.  According to the court, by stating that Carpo "may attempt return to work," the note conveyed the doctor's belief that, as a medical matter, Carpo was able to resume her work.  The qualifying language "may attempt" does not intimate that Carpo is incapable of resuming her full duties, the court found, Rather, it conveyed that the doctor was not absolutely certain, but, because it is very likely that she can, it is safe for her to try.

Comment:  The decision is interesting as much for what it doesn't say as what it does.  The decision enforces a literal reading of 29 CFR 825.310(c) regarding the permissible scope of a fitness for duty inquiry.  It does now, however, address the requirement in 29 CFR 825.214(b) that, to be entitled to job restoration from FMLA leave an employee must be able to perform all essential job functions.  Carpo's employer, in a sense, included the requirement that an employee be able to perform all essential job functions on their return as part of the return to work fitness-for-duty certification.  The court clearly held that the employer interfered with the employee's rights by incorporating this requirement as part of the fitness-for-duty certification.  Presumably, at least for this court, an employer must accept the return of an employee based on a simple statement that the employee may return, and then determine after the employee comes back to work whether the employee is able to perform all essential job functions.  If not, the employee would not have perfected his or her FMLA right to return to work.  Of course, the employee's return might be permitted pursuant to more generous agency policies, the terms of a collective bargaining agreement, or other laws.  If so, the employee's rights would be governed by those laws and not the FMLA.

Employer Did Not Interfere with Employee’s FMLA Rights by Running FMLA Leave Concurrent with Temporary Disability Plan Leave

In Skelton v. The Health Alliance, No. 1:04-cv-797, 2006 U.S. Dist. LEXIS 74073 (S.D.Ohio Oct. 11, 2006) the court rejected the employee’s argument that her employer interfered with her FMLA rights by not allowing her to “preserve” her 12 weeks of FMLA leave while she was out on disability leave for the birth of a child.  The court, citing 29 CFR 825.207(d)(1), noted that an employer is permitted to both run and count FMLA leave concurrently with leave pursuant to a temporary disability benefit plan for purposes of the employee’s entitlement to twelve weeks of FMLA leave.  Because she was provided the full 12 weeks of FMLA leave to which she was entitled, the court granted the employer’s motion for summary judgment dismissing Skelton’s FMLA interference claim. 

Comment:  Understandably, to maximize the amount of leave available employees frequently look to have FMLA leave apply consecutively rather than concurrently with leave available pursuant to an employer’s regular leave policies.  Disability leave plans receive special treatment under the FMLA.  Because the leave is paid the FMLA rules governing substitution of paid leave do  not apply.

Lifetime Condition Does Not Prevent Employer From Requesting Recertification

In a recent federal district court decision the employee argued that his employer violated the FMLA by requiring him to recertify his serious health condition every thirty days. Specifically, he argued that because his physician had certified that his back condition was lifelong his employer was precluded by 29 CFR 825.308(b)(1) from requiring that he recertify every thirty days unless the employee requests an extension of leave, circumstances have changed significantly, or the employer receives information that casts doubt on the continuing validity of the certification. The employee argues that none of these circumstances are involved. The Court found that 29 CFR 825.308(b)(1) did not apply. That provision, the Court observed, “does not refer to the minimum duration of the health condition. Instead it pertains to the “period of incapacity.” The Court agreed with the employer that the recertification request was governed by 29 CFR 825.308(a) which permits recertification every 30 days for chronic or permanent/long-term conditions. Parsley v. The City of Columbus, 2006 U.S. Dist. LEXIS 72185 (S.D.Ohio Oct. 3, 2006).

Comment: The FMLA permits employers to up-date a medical certification by recertification. However, employers are prohibited from requesting recertification more frequently than the minimum period of incapacity specified by the health care provider, with some exceptions. Many employees confuse the “minimum period of incapacity” with the duration of the condition. Remember, a period of incapacity generally means the inability to work, attend school, or perform other regular daily activities due to the serious health condition.

FMLA Does Not Require Transfer as an Accommodation of a Serious Health Condition

Plaintiff, an elementary school teacher, demanded to be transferred to another school within the district because of problems she was having with the principal of her school.  Her repeated demands for a transfer were denied.  She asserted that she would not teach the next school year if her transfer requests were not granted.  Henry was AWOL the first several days of class during the new school year.  Instead of teaching, she went to the Central Office and demanded to be transferred.  On her last visit she provided a medical note indicating that she need three weeks of leave.  The Board notified Henry that it intended on terminating her for AWOL and insubordination.  It also granted her request for medical leave.  Henry sued alleging that the Board had retaliated against her in violation of the FMLA by denying her transfer requests.

The court found that Henry failed to establish her FMLA retaliation claim.  The court opined:

The Plaintiff is not entitled to damages under the theory that FCSD refused to accommodate her medical condition by transferring her to another school.  Such a claim for relief fundamentally misconstrues the purpose of the FMLA, which is merely to "entitle employees to take reasonable medical leave for medical reasons." ... There is nothing in the language of the FMLA that compels employers to provide broad based workplace accommodations to employees with serious medical conditions.  The only type of accommodation it provides is medical leave.

Henry v. Fulton County Board of Education, No. 1:05-CV-2008-TWT, 2006 U.S. Dist. LEXIS 74062 (N.D.Ga. Oct. 10, 2006)

Comment:  The FMLA does not require employers to accommodate an employer's serious health condition in any form other than leave.  Job accommodation may, however, be required by the ADA (if the employee's serious health condition also constitutes a disability), other laws, and/or employer policies, including the terms of a collective bargaining agreement.

Posting Notice of FMLA Rights on Employer's Website Satisfied FMLA Posting Requirement

In a case of first impression, the First Circuit in Dube v. J.P. Morgan Investor Services, No. 05-2487, 2006 U.S. App. LEXIS 25567 (1st Cir. Oct. 13, 2006) found that the employer satisfied the requirement in 29 CFR 825.300(a) that it post notice of FMLA rights and obligations by posting its FMLA notice on the employer's intranet website.  The intranet website was accessible to all employees while they were at work.  The court rejected the employee's argument that intranet positing was insufficient because he did not have access to it from home during his leave period.  The court found that the employer was not required to "post the notice where it could be seen by employees at home; the regulation only requires that the notice be posted at the workplace, and Dube cites no authority to support his suggestion that this rule is different where the notice is posted electronically.

Comment: The decision sanctions the use of electronic posting in lieu of physical posting of the DOL FMLA Poster.  The decision applies to Title I of the FMLA.  The OPM regulations implementing Title II do not include a posting requirement per se, but merely require that employees be informed of their FMLA rights and obligations with the suggestion that this may be accomplished by affording employees access to the statue and regulations.  Presumably, this could be done electronically as well.  The CAA and the PEOAA do not have posting requirements.  The First Circuit covers Maine, New Hampshire, Massachusetts, Rhode Island, Puerto Rico, and the U.S. Virgin Islands.

Employees Employed Outside of the United States Not Eligble for FMLA Leave

In Freeman v. Sikorsky Aircraft Corp., No. 04-CV-0506-CVE-SAJ, 2006 U.S. Dist. LEXIS 58362 (N.D.Ok. Aug. 17, 2006), the employee accepted a job in September 1999 as Base Manager of the defendants' site in Brazil.  As part of his job he would occasionally return to the United States for meetings. On January 4, 2004, Freeman left Brazil and flew to Tulsa, Oklahoma without notice to his employer.  There, he was diagnosed as suffering from a major depressive disorder and panic disorder.  On January 9, his physician contacted the defendant and requested medical leave for plaintiff.  He was granted FMLA leave and his payroll status was changed to "domestic" because he was now living in the United States.  He was not informed at the time that he was not eligible for FMLA leave.  The company subsequently terminated Freeman allegedly because he failed to reconcile missing company funds and property.  Freeman sued alleging that he was terminated in retaliation for having taken FMLA leave. The court found otherwise.  Freeman, the court found, was not eligible for FMLA leave.  At the time his leave commenced he was employed in Brazil.  Employees who are "employed in any country other than the United States or Territory or possession of the United States" are not "eligible employees' for the purposes of the FMLA.  29 CFR 825.800.  The court rejected the argument that his worksite was in the United States based on occasional business at the defendant's headquarters.

Comment:  Note that the Freeman court did not address the affect of the employer's failure to notify Freeman that he was not eligible for FMLA leave.  By operation of 29 CFR 825.110(d), the employer's failure to notify Freeman that he was not eligible for FMLA leave should have resulted in him being deemed eligible.  The decision fails to address this issue at all.  Many courts have found this provision to be Constitutionally invalid because it grants eligibility status to those who do not meet the eligibility requirements set by Congress as a penalty for an employer's failure to abide by the DOL notice requirements. 

Arbitration of FMLA Claims Pursuant to Employment Contract Enforceable

In Moncrief v. The Terminix International Co. Limited Partnership, No. 06-1047-JTM, 2006 U.S. Dist. Lexis 43816 (D.Kan. June 27, 2006), the court found that Moncrief must arbitrate her FMLA claims in accordance with an employment and arbitration agreement she signed as a condition of her employment.  The Agreement requires arbitration of all employment disputes.  The court, citing the Supreme Court, noted that compelled arbitration is permitted for alleged violations of federal employment statutes where a valid employment contract so requires.  The court distinguished the enforcement of a broad arbitration provision in a valid employment contract from a wavier provision in a severance agreement, noting Fourth Circuit case law that agreeing to arbitration is entirely different from agreeing to waive a claim. 

Comments:  The anti-wavier provisions of 29 CFR 825.220(d) do not apply to valid, pre-employment agreements to arbitrate FMLA claims in lieu of civil suit.

 

FMLA Does Not Apply to Employees Employed Outside of the United States

The court in Freeman v. Sikorsky Aircraft Corp., No. 04-CV-0506-CVE-SAJ, 2006 U.S. Dist. LEXIS 58362 (N.D.Ok. Aug. 17, 2006), the employee accepted a job in September 1999 as Base Manager of the defendants' site in Brazil.  As part of his job he would occasionally return to the United States for meetings. On January 4, 2004, Freeman left Brazil and flew to Tulsa, Oklahoma without notice to his employer.  There, he was diagnosed as suffering from a major depressive disorder and panic disorder.  On January 9, his physician contacted the defendant and requested medical leave for plaintiff.  He was granted FMLA leave and his payroll status was changed to "domestic" because he was now living in the United States.  He was not informed at the time that he was not eligible for FMLA leave.  The company subsequently terminated Freeman allegedly because he failed to reconcile missing company funds and property.  Freeman sued alleging that he was terminated in retaliation for having taken FMLA leave. The court found otherwise.  Freeman, the court found, was not eligible for FMLA leave.  At the time his leave commenced he was employed in Brazil.  Employees who are "employed in any country other than the United States or Territory or possession of the United States" are not "eligible employees' for the purposes of the FMLA.  29 CFR 825.800.  The court rejected the argument that his worksite was in the United States based on occasional business at the defendant's headquarters.

Comment:  The court did not address the affect of the employer's failure to notify Freeman that he was not eligible for FMLA leave.  By operation of 29 CFR 825.110(d), the employer's failure to notify Freeman that he was not eligible for FMLA leave should have resulted in him being deemed eligible.  Many courts have found this provision to Constitutionally invalid because it grants eligibility status to those who do not meet the eligibility requirements set by Congress as a penalty for an employer's failure to abide by the DOL notice requirements. 

FMLA Does Not Require Transfer as an Accommodation of a Serious Health Condition

Plaintiff, an elementary school teacher, demanded to be transferred to another school within the district because of problems she was having with the principal of her school.  Her repeated demands for a transfer were denied.  She asserted that she would not teach the next school year if her transfer requests were not granted.  Henry was AWOL the first several days of class during the new school year.  Instead of teaching, she went to the Central Office and demanded to be transferred.  On her last visit she provided a medical note indicating that she need three weeks of leave.  The Board notified Henry that it intended on terminating her for AWOL and insubordination.  It also granted her request for medical leave.  Henry sued alleging that the Board had retaliated against her in violation of the FMLA by denying her transfer requests.

The court found that Henry failed to establish her FMLA retaliation claim.  The court opined:

The Plaintiff is not entitled to damages under the theory that FCSD refused to accommodate her medical condition by transferring her to another school.  Such a claim for relief fundamentally misconstrues the purpose of the FMLA, which is merely to "entitle employees to take reasonable medical leave for medical reasons." ... There is nothing in the language of the FMLA that compels employers to provide broad based workplace accommodations to employees with serious medical conditions.  The only type of accommodation it provides is medical leave.

Henry v. Fulton County Board of Education, No. 1:05-CV-2008-TWT, 2006 U.S. Dist. LEXIS 74062 (N.D.Ga. Oct. 10, 2006)

Comment:  The FMLA does not require federal employers to accommodate an employer's serious health condition in any form other than leave.  Job accommodation may, however, be required by the Rehabilitation Act (if the employee's serious health condition also constitutes a disability), other laws, and/or agency policy, including the terms of a collective bargaining agreement.