The FMLA Blog

Employee's Right to Return to Work From FMLA Leave May Not Be Denied Based On Inability to Meet Non-Essential Job Function

Under the FMLA, an employee is entitled to reinstatement to his or her former, or an equivalent position upon returning from FMLA leave.  However, the right to job restoration is qualified; it is not absolute. The FMLA does not require an employer to reinstate an employee who is unable to perform all of the essential functions of the employee's pre-leave position at the time the employee seeks to return to work.

In Carstetter v. Adams County Transit Authority, No. 1:06-CV-1993, 2008 U.S. Dist. LEXIS 51874 (M.D. Pa. July 8, 2008), the plaintiff worked as a vehicle maintenance mechanic for ACTA.  The position primarily required him to perform routine maintenance on county vehicles.  His position required that he occasionally drive ACTA vehicles to move or test them incident to the performance of maintenance.  ACTA required Carstetter to obtain an annual medical clearance from the Pennsylvania DOT, which is necessary to operate commercial vehicles on public roads.  As a maintenance mechanic, Carstetter did not operate commercial vehicles on public roads. 

Carstetter suffers from diabetes, sleep apnea, depression, and anxiety.  He took and failed his required DOT medical examination shortly before it expired.  He alerted his supervisor that he would not be able to renew his medical clearance before the expiration date.  Carstetter requested FMLA leave prior to the expiration date to address the situation.  ACTA did not place him on FMLA leave, but granted him short-term disability.  It subsequently fired Carstetter when he applied for unemployment benefits to make up for the short-fall in pay from short term disability (which paid 60% of his salary). 

Carstetter sued, alleging interference with and retaliation for exercising his FMLA rights.  ACTA objected to the recommendation of the magistrate judge denying summary judgment to the ACTA on the FMLA claims.  ACTA argued that it did not interfere with his right to return to work from FMLA leave because Carstetter's medical condition prevented him from performing the essential function of his position, which included the ability to obtain annual medical clearance.  The court disagreed.

The court found that Carstetter raised a genuine issue of material fact regarding his ability to perform the essential functions of his job as a mechanic. The evidence established that, at the time of his request to return to work, Carstetter could operate vehicles for up to 30 minutes without a break, replace tires, change engine fluids, wash vehicles, sweep, and perform other vehicle maintenance duties without accommodation.  Significantly, the court also found that a reasonable jury could conclude that his ability to secure a medical clearance to drive commercial vehicles on public roads was not an essential function of his duties as a vehicle maintenance mechanic.  As such, ACTA may have interfered with his right to return to work. 

Comment:  The decision illustrates two points. First, an employer cannot deny an employee's return from FMLA leave simply because the employee cannot perform all of the jobs requirements on return.  To properly deny an employee's return to work from FMLA leave, an employer must establish that the employee cannot perform all of the essential functions of the job.  Whether a function is essential is determined by ADA standards.  An employee's inability to perform ancillary or non-essential job functions does not relieve an employer from accepting the employee's return from FMLA leave. Stated differently, an employer that refuses to return an employee from FMLA leave based on the employee's inability to perform a non-essential job function violates the FMLA. 

Second, the decision of the court appears incorrect.  The decision assumes that Carstetter's leave request to address his difficulities in securing DOT medical clearance qualifies under the FMLA.  There was no evidence that Carstetter was eligible for FMLA leave benefits, or that he was otherwise incapacitated due to a serious health condition within the meaning of the FMLA.  Indeed, the court's opinion that the medical clearance was not an essential job function critically undermines its assumption that Carstetter was on FMLA leave. 

The FMLA states that an employee is unable to perform the functions of his or her position where the employee is unable to perform one of the essential functions of the position within the meaning of the ADA.  29 CFR 825.115.  If, as the court opined (again, for purposes of summary judgment), that the ability to secure a medical clearance is not an essential function of a mechanics position for purposes of return to work, it would not support Carstetter's request for FMLA leave in the first place.  As such, there was no genuine issue of material fact to preclude summary judgment for ACTA. 

Of course, just because an employee does not have the FMLA right to return to work from leave does not mean that the employee is without recourse.  Employer policy, the terms of a collective bargaining agreement, and/or other state or federal laws may afford the employee a right to job restoration.            

FMLA Not Violated Based on Employee Misunderstanding of Leave Rights

An employee who remains out of work beyond 12 weeks based on a misunderstanding regarding the amount of FMLA leave available does not have a viable FMLA claim against his or her employer for disciplinary action regarding the excess unexcused absences.

In Edwards v. Heathcraft, Inc. No. 7:05-cv-36 (HL), 2008 U.S. Dist. LEXIS 11596 (M.D. Ga. Feb. 15, 2008), the employee took maternity leave when she became medically unable to perform the lifting functions of her job while pregnant.  The supporting medical certification indicated that Edwards would need leave from April 16 to November 16.  The certification also indicated the probable duration of her condition to December 6, 2004. 

Based on the medical certification, Edwards believed that she had until December 5 to return to work.  Heathcraft properly designated 12 weeks of her leave as FMLA and so informed the employee.  After the expiration of 12 weeks of FMLA leave but before December 6, Edwards ignored Heathcraft's repeated requests to return to work or face discipline for unexcused absences.  Heathcraft terminated Edwards for fifteen unexcused absences.

According to the court, Edwards' right to job-protected FMLA leave expired 12 weeks after her leave began.  Heathcraft, the court found, had done everything it was required to do under the FMLA.  When Edwards failed to return to work thereafter, Heathcraft had no FMLA obligations to fulfill.  The cited absences were not protected by the FMLA and, therefore, could legitimately be the basis for disciplinary action. 

Comment:  All too often employees exceed their 12 weeks of job-protected FMLA leave because they are not aware of exactly how much FMLA leave they have available.  Currently, the employer notice provisions of the FMLA, 825.208(b)(1), only require an employer to notify the employee that leave has been designated and will be counted as FMLA leave.  The current regulations do not specifically require employers to provide employees with information detailing the amount of leave so designated.

Recognizing the problem, the DOL has proposed revising the notice provisions by adding the requirement (825.300(c)(1)) that employers tell employees the number of hours, days or weeks of leave that have been designated.  Where the exact amount of FMLA leave may be unknown, the proposed regulations require employers to notify employees every 30 days of the amount of leave that has been designated as FMLA-qualifying.  The above information is designed to avoid situations like Edwards where an employee mistakenly exceeds their 12 weeks of FMLA leave due to a lack of information.

New Performance Goal on Return from FMLA Leave Did Not Violate FMLA

Shelly Chandler worked as a general manager of the La Quinta Inn in Shreveport, Louisiana.  She requested and was granted FMLA leave.  While she was on leave The La Quinta corporate office conducted a random audit of the Shreveport La Quinta Inn.  Pursuant to the corporation's guidelines, to pass the audit the property needed to score at least 70 points out of a possible 95.  The hotel failed, receiving a score of 40.5.  According to an informal corporate policy,  a passing score of "near 79" was determined by the average of the initial score (40.5) and the re-audit score.

On her return from FMLA leave, Chandler was placed in her former position with the same pay and benefits.  She was also told, however, of the failing score and that she needed to achieve a 90 on the re-audit or face discipline.  After initially attempting to address the deficiencies noted in the initial audit, Chandler submitted her resignation. She believed that combination of an impossible performance goal coupled with a threat of discipline constituted a constructive discharge. 

Chandler argued La Quinta violated the FMLA by failing to return her to her same or equivalent position from FMLA leave.  She claimed that the new performance goal and threat of discipline changed the duties and responsibilities of her position.  The Fifth Circuit disagreed.

The Court observed:

The performance goal of scoring a ninety did not amount to any change in Chandler's position or condition of employment, let alone a de minimis one, particularly given that Cowan [her supervisor] created the goal pursuant to an informal policy that required an average around 70% for tow audits if a facility fails the first audit.  Therefore, La Quinta did not violate the FMLA in creating a new performance goal upon Chandler's return from leave.

Comment: Not every change in an employee's work environment after they have returned from leave violates the FMLA.  The use of FMLA leave does not shield an employee from the operation of pre-existing employer performance policies.  Here, the employee at all times was subject to the policy and therefore exposed to the possibility that new, higher performance standards could result in the event of a failed audit.  To excuse Chandler from the operation of La Quinta policy simply because she took FMLA leave would bestow a benefit on her that she would not receive had she taken some other kind of of leave.  This kind of favorable treatment is not required by the FMLA.

Chandler v. La Quinta Inns Inc., No. 07-30449, 2008 U.S. App. LEXIS 2404 (5th Cir. Feb. 1, 2008). 

         

Employer Policy Requiring that Return to Work Certification Specify Employee Could Work Without Restriction Violates FMLA

In Clark v. Gospel Light Publications, No. 1:06-CV-327, 2007 US. Dist. LEXIS 63000 (S.D. Ohio Aug. 27, 2006), the employer's policy required that the return-to-work medical certification specify that the employee could work full duty or without restriction.  The court found that this policy violated the FMLA.  Under the FMLA, a return to work medical certification need only be a simple statement of an employee's ability to return to work.  As such, an employer's obligation to reinstate an employee is triggered where a medical certification authorizes the employee to return to work, even if the certification does not address whether the employee can work without restrictions.      

Comment:  The decision illustrates a trap for unwary employers.  The FMLA allows employers to condition an employee's return from FMLA leave on submission of a medical certification that simply attests to the employee's ability to return to work.  On the other hand, it is well established that the FMLA right to job restoration is conditioned on an employee's ability to perform all essential job functions by the time they return to work from FMLA leave.  Some employers, like Gospel Light, make a mistake when they combine these requirements for purposes of the return to work medical certification. 

To avoid FMLA violations, employers need to keep the medical certification requirement separate from the requirement that the employee be able to perform all essential job functions on the return from FMLA leave.  Employers should not deny or delay an employee's return to work because the certification, while simply stating the employee was able to return to work, failed to state that the employee's was able to return to work without restriction, or similar language.   

An exception that would allow an employer to require more information than a simple statement of an employee's ability to return to work exists where the additional information is permitted by state law or the terms of a collective bargaining agreement. 

    

Employee Not Entilted to Assurance of Higher Level Acting Assignments on Return from FMLA Leave

In Clemons v. Potter, No. 3:05-cv-35-J-32TEM, 2007 U.S. Dist. LEXIS 42061 (M.D.Fla. June 11, 2007), the employee alleged that the Postal Service had interfered with his FMLA rights when it failed to periodically appoint him as an acting operations manager, at higher pay, on his return to work from FMLA leave.  Prior to taking FMLA leave, Clemons, who served as a supervisor of distribution operations, had been periodically appointed as Manager, Distribution Operations, at higher pay. 

The Court held that, under the FMLA, Clemons right to be restored to his previous position was satisfied when he was restored4ed to his supervisory position with no loss of pay or benefits. The FMLA, the Court found, did not require the Postal Service, as part of the obligation to restore plaintiff to his previous position, to assure him that he would be named acting manager on some specified number of future occasions.  Service as acting manager was not part of Clemons supervisor job description.  Nor was it an established benefit of holding the supervisor position.  There was no guarantee that Clemons would be selected on any scheduled or predictable basis.  Quoting the statute, the Court concluded that the FMLA does not entitle a restored employee to any right, benefit or position of employment other than any right, benefit, or position of employment to which the employee would have been entitled had the employee not taken leave.   

Comment: The decision reminds us that an employee is not entitled to any more rights on return from FMLA leave than they enjoyed before they took leave.  Here, Clemons failed to establish that he had a right to perform a set amount of higher level acting management assignments on his return to work because selection to perform higher level management work was, at all times, discretionary.  Because he did not have the right to perform a specified amount of higher level work before he took FMLA leave, he did not have that right on his return from FMLA leave.  There are, therefore, limits to what a Court will consider to be a "benefit" of an employee's job that must be replicated on an employee's return to work.   

Based on the same facts, however, the Court went on to deny summary judgment to the Postal Service on Clemons retaliation claim.  The Court found that management's statement that it would no longer select Clemons to serve as a higher level acting manager because of lack of "dependability and reliability" established a sufficient nexus with his need for unforeseeable, intermittent FMLA leave to suggest impermissible retaliation.  The Court nevertheless ruled in favor of the Postal Service because Clemons failed to establish that he suffered actual monetary damages.   

While Clemons may not have had a right on return to work to a minimum amount of higher level management assignments for purposes of an FMLA interference claim, he did have the right not to be retaliated against for taking job-protected intermittent FMLA leave. 

No FMLA Claim Where Employee Was Unable to Return to Work Before Expiration of 12-Week FMLA Leave Entitlement

In Ruff v. DePaul University, No. 07 C 156, 2007 U.S. Dist. LEXIS 25065 (N.D.Ill. April 4, 2007), Marcus Ruff, a Security Coordinator at DePaul, was injured after falling down some stairs.  He was placed on FMLA leave.  He was advised that his entitlement to FMLA leave would run out on May 5.  On May 5, he returned to work for part of the day, but left early due to illness.  He subsequently provided a medical certification indicating that he was not released to return to work.  The certification did not give an estimated date when Ruff could resume his job.  DePaul subsequently terminated Ruff.

Ruff sued, alleging that he was terminated in violation of the FMLA.  DePaul moved to dismiss the civil suit alleging that Ruff had failed to state a violation of the FMLA.  The Court agreed. In pertinent part, the Court noted that Ruff received the full 12 weeks of FMLA leave to which he was entitled.  Moreover, Ruff admitted that he was medically unable to return to work after his FMLA leave expired.  As such, Ruff did not have a right to be restored to either his previous position, or any other provision, at DePaul.

Comment:  To perfect the right to job restoration, an employee must return to work before the expiration of the 12 weeks of FMLA leave.  That is, the FMLA right to job restoration is from FMLA leave, not some other form of leave.  Once the 12 weeks of FMLA leave have been exhausted, the employee's right to return to work is governed by employer policies or other laws, not the FMLA.

For FMLA Purposes, Providing Employee with Same Salary, Benefits, and Job Classification on Return from FMLA Leave Insufficient

An employee who is offered a position at the same salary, benefits, and job classification as the employee held prior to taking FMLA leave was not returned to an "equivalent position" where the positions offered did not also have the same level of responsibility, authority, status, and privileges as the position the employee held prior to taking leave. 

No FMLA Right to Immediate Reinstatement for Employee Hired Through Union Hall

In Klich v. Gabe's Construction Co., No. 05-C-1262, 2007 U.S. Dist. LEXIS 11988 (E.D.Wisc. Feb. 20, 2007), the Court found that Klich did not have the right to immediate reinstatement from FMLA.  Klich was an employee of the Union.  The Union had collective bargaining agreements with a number of construction employers in the area , including Gabe's.  The collective bargaining agreement required Gabe to hire union employees through the Union. 

Klich underwent double replacement knee surgery on January 12, 2004.  He was unable to work until April 19, 2004, approximately 12 weeks later.  He provided his Union with a release permitting him to return to work but with permanent lifting restrictions and permanent kneeling restrictions.  He as placed on the Union hiring list which made him available to be hired by all Union employers, including Gabe's.  He was not rehired by Gabe's.  The record established that there were a number of jobs openings at Gabe's after April 19, 2004, and that Gabe's considered Klich for several positions.  Klich sued alleging that Gabe's should have rehired him on April 19, 2004, when he was released to return to work. The Court disagreed.

Because Klich was an employee of the Union, Gabe's did not have an FMLA duty to immediately rehire Klich when he was released to return to work.  to do so, the Court found, would provide Klich greater rights to reinstatement than he was entitled to before his surgery, which not required by the FMLA.  Klich did not have a permanent position with Gabe's, but rather was hired by Gabe's when work became available.  Gabe's merely had a duty to consider Klich for available positions after his surgery, which it did.  Moreover, the position Klich was in with Gabe prior to his surgery no longer existed by the time Klich recovered. 

Comment:  The FMLA does not require that an employer allow a joint employee (Klich) to "jump the line" to be restored to a pre-leave position outside of the normal job placement procedures used by Gabe's (the secondary employer) and the Union (the primary employer).  Klich had to wait for a position within his qualifications, seniority, and limitations just like anyone else at the Union hiring hall.  Of course, the FMLA prohibited Gabe's from discriminating against Klich in terms of being considered for work that was available.   

Another way to look at this is that Klich may not have had the FMLA right to return to work because of his lifting and kneeling restrictions.  If his lifting and kneeling were essential functions of his pre-leave position, Klich would not have the FMLA right to return to work anyway.  Moreover, Klich appears to have been out of work in excess of 12 weeks.    

   

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.

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.