The FMLA Blog

Termination Did Not Violate FMLA Where Employee Failed to Return to Work After Being Released by Doctor

The Fifth Circuit in Hart v. Comcast of Houston, LLC, No. 09-20238, 2009 U.S. App. LEXIS 22720 (5th Cir. Oct. 15, 2009) recently found that an employee who fails to return to work from FMLA as requested by his employer subsequent to being released by his physician to return to work fails to state an FMLA retaliation claim.  The post-release failure to return to work as requested by the employer, the court found, was a legitimate, non-discriminatory reason justifying the employee's removal independent of the taking of FMLA leave.   

Comment:  The FMLA does not grant employee's the absolute right to return to work from FMLA leave.  Rather, the right to return to work may be superceded where, as in Hart, the employee engages in unrelated conduct that is grounds for termination.  Employees who fail to return to work after their doctor has released them no longer have the FMLA right to return to work.  As such, they may be disciplined or terminated for failing to return to work as requested by the employer, subject, of course, to the anti-discrimination/retaliation protections of the FMLA.  An employee will not be able to demonstrate discriminatory animus where, as in Hart, the employer has a legitimate reason for terminating the employee.  

Return to Work from FMLA Leave for 3 Minutes Before Termination Violated FMLA

Returning an employee from FMLA leave to a position only long enough to be fired does not amount to a meaningful reinstatement under the FMLA.  In Burke v. Laboratory Corp. of America, No. 8:08-cv-2072-T-24-TGW, 2009 U.S. Dist. LEXIS 92891 (M.D. Fla. Oct. 6, 2009), Burke was fired three minutes after returning from FMLA leave.  She sued alleging violation of the FMLA.  The Court opined:

While the FMLA does not require an employer to keep an employee indefinitely after she returns from medical leave, the law's protections extend beyond reinstating a person to a job for three minutes.

Lab Corp. argued that it terminated Burke as part of a legitimate downsizing.  Burke contended that she was terminated due to age discrimination. The court denied the employer and employee's motion for summary judgment on the FMLA claims.

Comment: The court's observation that the right to reinstatement from FMLA leave prohibits an employer from allowing an employee to return to work only long enough to be fired, appears, at least to me, to overstate the FMLA reinstatement right. 

As observed by the court, the FMLA does not require an employer to reinstate an employee in every circumstance. If the employer would have terminated the employee for legitimate, non-FMLA reasons the employer may do so even if the employee is on FMLA leave.  It makes little sense (to me anyway) that an employer may terminate an employee for non-FMLA reasons prior to the employee returning to work, but somehow loses that right, at least for some unspecified period, simply because the employee is allowed to return to work in order to be terminated. 

The employer may have legitimate reasons to allow the employee to return to work before terminating the employee.  First, the employer may believe that terminations should be conducted in person rather than over the telephone or by mail.  Second, the employer may prefer the individual be on the clock and allowed on the premises when they are terminated to allow them to collect their things and say their goodbyes before leaving.  For liability purposes, the employer may not want an ex-employee on the premises to collect their things or talking to current employees.  It just strikes me as one of those no-win situations.  If the employer does not fire the employee in person, they are cold and impersonal.  If they fire the employee in person shortly after returning from leave, that is cruel as well.  I am not sure how it helps the employee for the employer to wait hours, days, or a week or two before executing a termination decision that has already been made.  One could argue that is just as cruel to the unsuspecting employee.  While it may put some coin in the employee's pocket, something not explicitly required by the FMLA, it also delays the employee's ability to get on with his or her life.        

The statute nor the DOL regulations provide for any minimum period of time that an employee must be allowed to work on return from FMLA leave before a decision to terminate may be put into effect.  Had Congress or the DOL wanted to impose a minimum temporal period before an employer may terminate an employee for non-FMLA leave reasons they could have easily done so.  They did not. 

It would have been better had the court simply denied summary judgment because of the existence of material facts in dispute.  Specifically, whether the termination was the result of legitimate downsizing, as claimed by the employer, or the product of age discrimination, as claimed by Burke.  

   

Delay of and Reinstatement to Different Job Duties Did Not Violate the FMLA

In Barton v. Zimmer, Inc., No.1:06-CV-208-TS, 2009 U.S. Dist. LEXIS 60555 (N.D. Ind. July 16, 2009), the employee (Barton) alleged that his employer (Zimmer) interfered with his FMLA rights by placing him on paid administrative leave in lieu of allowing him to return to work from FMLA leave immediately, and by failing to return him to his former or an equivalent position when he was allowed to return to work.

In both instances, the court accepted Zimmer's argument that the right to reinstatement is not absolute and, under the circumstances, it acted appropriately.  With respect to the delay in reinstatement, Zimmer established that it would have placed Barton on paid administrative live regardless of whether he took FMLA leave while it investigated his age discrimination claim against his supervisor.  The court also rejected Barton's claim that Zimmer delayed his return after the investigation had concluded finding that, even if that was the case, Barton failed to establish that any delay was casually related to taking FMLA leave.  "The mere fact that Plaintiff was on leave when the Defendant discovered the problems with the Plaintiff's job responsibilities and with Richardson's supervision of the Training Department did not bar it from being able to use paid administrative leave, or any other measure it would have otherwise used, to address the issue."

Similarly, the court rejected Barton's argument that it violated the FMLA by failing to return him to the same or equivalent position when he did return to work.  On his return, Barton was assigned to develop and present a new sales training class.  Zimmer argued that the new assignment was in response to changes being made within the Training Department.  Zimmer argued that the right to reinstatement to his same or equivalent job is not absolute, and that it would have assigned Barton to conduct the training anyway to meet the needs of the company.  The court agreed with Zimmer.  The court observed:

Therefore, regardless of whether the Plaintiff's job was the same or equivalent to his job before he took FMLA leave, the Plaintiff is not entitled to present this claim to the jury unless there is a genuine issue of fact whether the Defendant would have given him these assignments if he had not taken FMLA leave.

The court found in favor of the Zimmer because Barton failed to address the substantance of his employer's claim, electing instead to simply assert that the new assignment was not substantively  equivalent to the duties he performed in his pre-leave position.

Comment:  The decision gets the interaction of the FMLA return to work requirements and the "no greater right to resintatement" provisions correct.  An employee's FMLA right to be returned to the same or an equivalent position is not absolute.  The FMLA recognizes that an employee has no greater right to reinstatement or to other benefits and conditions of employment then if the employee had been continuously employed during the FMLA leave period.  29 USC 2614(a)(3).  If an employer can demonstrate that it would have taken the same action had the employee not taken FMLA leave, the burden shifts to the employee to overcome that assertion.  To defeat summary judgment, the employee must proffer sufficient evidence to raise a genuine issue of material fact that the employer would not have taken the challenged action had the employee not taken FMLA leave.  As in Barton, an employee who fails to counter the employer's legitimate, nondiscriminatory justification for any delay or post-return change in job duties will find him or herself on the losing end of a summary judgment motion.    

 

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.