The FMLA Blog

Weekly Calls to Employee on FMLA Leave To Ask When They Would Return to Work Interfered with Employee's FMLA Rights

In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave. The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.  The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.  The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave."  29 CFR 825.220(b).

Comment:  The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights.  The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).  

From the decision, it does not appear that the employer argued the point.  Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference.  For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.  

Unfortunately, it is not clear from the Terilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports.  If the duration of approved leave is unknown weekly status reports would appear to be reasonable. 

The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment.  I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances.  Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.    

 

 

Termination of Employee For Failure to Report Change in Return to Work Date Did Not Violate FMLA

The FMLA allows an employer to require an employee to report periodically on their status and intention to return to work.  The FMLA allows such reporting requirements so that employers are not left in the dark regarding when an employee will return to work.

In Bardwell v. Global Santa Fe Drilling Co., No. H-06-0171, 2007 U.S. Dist. LEXIS 62106 (S.D. Tex. Aug. 23, 2007), Bardwell worked on an off-shore oil rig.  Six crews of employees worked staggered 21-day shifts on the rig, with 21 days off.  A helicopter was used to transport employees to and from the rig.

Bardwell was scheduled to report to work on January 7.  She called two days before to report she was ill and would not make it.  She supported her leave request with medical documentation.  She was subsequently cleared by her doctor to return to work on January 20.  Bardwell informed her supervisor that she would be able to return to work on January 20 for the last week of her 21-day hitch.  Bardwell return to the rig by helicopter was scheduled for January 21.  Bardwell failed to report to work on January 21.  She was subsequently terminated.

Bardwell testified that she called her employer from home on the 19th and 20th to report that she was ill and would be unable to report for work.  The employer maintained that it did not receive any calls from Bardwell.  Based on an examination of her telephone records, the court concluded that Bardwell had not called her employer on the 19th and 20th as claimed.  The court found that Global Santa Fe had a reasonable and good faith belief that Bardwell had failed to advise them, in advance, that she would be unable to return to work on the rig as scheduled on January 21. 

The court concluded that, even assuming Bardwell's absence was covered by the FMLA, employee's who fail to comply with legitimate reporting requirements set by their employers are not entitled to reinstatement. Nor does the FMLA protect employees from discharge for reasons other than requesting FMLA leave. 

Comment:  The FMLA allows employers to have policies requiring an employee to report periodically on their status and intent to return to work.  Periodic status reports are not mandated by the FMLA.  To manage FMLA leave, employers should consider adopting policies that require employees to periodically report on their status and intent to return to work from FMLA leave. 

Note that the FMLA regulations do not specify a penalty for an employee's failure to provide his or her employer with periodic status reports.  As in Bardwell, courts have taken a hardline against employee's who fail to notify their employer regarding their expected return date.  To perfect their FMLA rights, including the right to return to work from FMLA leave, employee's should exercise great care to notify their employer regarding their return to work date, and any changes thereto.  Employees should provide notice in a way that leaves evidence that notice was, in fact, provided and when.   

   

Employer Is Not Mandated to Require Employee's To Report Periodically While on FMLA Leave

In Jones v. U.S. Postal Service, No. 20 07-3054, 2007 U.S. App. LEXIS 13790 (Fed. Cir. June 11, 2007), the employee argued that it was the Postal Service's responsibility to require him to report on his status once he was on leave, and that he did not know that he needed to return to work once he was no longer caring for his wife.  The regulations, the Court noted, state than an employer "may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work."  29 CFR 825.309(a).  The permissive "may" does not, the Court found, impose a duty on an employer to mandate that an employee report periodically.  Nor did the language relieve the employee of his responsibility to use FMLA leave only when he was "needed to care for" his wife.

Comment:  The employee was trying to argue that, had the employer required him to report periodically on his status and intent to return to work he would have learned that he could not remain out after the reason for FMLA leave, the need to care for his wife, expired.  Periodic status reports are a tool available to employers. The Court rejected the employee's creative argument attempting to use that tool as a sword against an employer that did not elect to require periodic status reports.   

Employer Policy Requiring Employee to Provide Periodic Status Reports During Leave Every 30 days Did Not Violate the FMLA

In Pande v. Chevron, Corp., No. C 04-5107 CW, 2007 U.S. Dist. LEXIS 3247 (N.D.Cal. Jan. 17, 2007), Chevron policy required an employee on FMLA leave to furnish the FMLA Unit with periodic reports every 30 days of employee's status and intent to return to work.  Ms. Dunn alleged that the FMLA prohibits an across-the-board policy requiring her to submit periodic status reports every thirty days.  The court disagreed.  Section 825.309(a) of the DOL FMLA regulations provides:

An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work.

The Court found that Chevron's policy did not violate the FMLA.

Comment:  The decision is noteworthy in that the FMLA does not define with what regularity an employer may require an employee to report "periodically."  It does, however, require that an employer's policy:

[M]ay not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee's leave situation.

29 CFR 825.309(a); 5 CFR 630.1208(j).

Here, it is unclear how the Court approved of Chevron's blanket policy mandating such reports every 30 days.  Chevron's policy, which does not take into account the circumstances related to the individual employee's leave situation, does not appear to fit within the periodic status report requirements of the FMLA.   

To remain within the requirements of the FMLA, employers would be well advised not to have a blanket policy mandating periodic status reports at specified intervals (e.g., every 30 days) regardless of the facts of any given case.  Periodic report policies must take into account the facts of each case.  It may be that in most cases requiring a report every 30 days is permissible.  You want to be in the position, however, to say that every request for a periodic status report was evaluated on its merits.