5 times it’s OK to fire an employee on FMLA leave

Of course, you’d never to fire someone for taking FMLA leave. But perhaps the termination had been in the works long before the person took FMLA leave. It’s still a sticky situation, but a court recently outlined when it’s safe to say goodbye to someone on FMLA leave. 

The danger is, obviously, FMLA interference and retaliation claims. You never want to make it look like the taking of FMLA leave was a motivating factor in the decision to terminate someone (not that it would be).

Still, an FMLA lawsuit may likely be forthcoming if you terminate someone while they’re on, or just returning from, FMLA leave. It’s kind of a go-to move for employee-side attorneys: “Oh, you were on FMLA leave when they fired you. That’s interference and retaliation.”

But courts will side with you if you can prove the employee, FMLA leave aside, had it coming — e.g., the person was embezzling money, harassing the secretary or lying to customers.

When it’s safe to cut the cord

The U.S. Court of Appeals for the Tenth Circuit recently highlighted five separate cases in which it threw out a worker’s FMLA lawsuit against an employer after finding “undisputed evidence that the employee in question would have been terminated even if FMLA leave had not been taken.”

In then pointed out the element each employer in those five causes had on its side that allowed the court to toss the claims against it. If you can prove one of these elements exist when weighing your decision to terminate an employee on FMLA leave, it’s generally safe to say “you’re fired”:

  • employee failed to comply with a direct and legitimate order from supervisors
  • there was overwhelming evidence of performance issues that predated the leave
  • employee had repeatedly been tardy and was non-compliant with absence policy on the date she was terminated
  • employee, prior to leave, had been tardy, absent from her desk, failed to timely pay invoices or update list of services received from vendors, and
  • evidence was unequivocal that the reduction-in-force decision had already been made before the employee took FMLA leave.

The court of appeals cited these while issuing its ruling in an FMLA interference and retaliation lawsuit brought against Tulsa Winch Inc. (TWI).

Fired after returning from leave

Paul Janczak was the general manager of Canadian operations for TWI when he took FMLA leave to recover from an auto accident.

Immediately upon his return from FMLA leave, Janczak was fired. He then filed an FMLA interference and retaliation suit.

The company tried to get his lawsuit thrown out claiming it was considering a reorganization of its management structure and eliminating Janczak’s general manager position prior to his taking leave.

As the court documents indicate, it does indeed appear as though the company had started evaluating whether or not to eliminate Janczak’s position prior to his leave.

But here’s where TWI’s case fell apart: The decision to eliminate the general manager position hadn’t yet been made prior to Janczak’s leave — thus leaving room for doubt as to whether or not his need for leave actually factored into the final decision to eliminate the position.

As a result, the court said Janczak’s interference claim should proceed to trial, where TWI faces either a costly court battle or settlement.

The court said in order for it to dismiss Janczak’s interference claims before a trial, TWI had to show that his termination would’ve definitely occurred regardless of his leave.

Takeaway: Don’t evaluate whether or not someone should be eliminated while he or she’s on FMLA leave. That’s a decision that must be made prior to the person’s leave — or well after, to enable enough time to pass for the resulting termination not to appear linked to the person’s FMLA leave in any way.

The retaliation claims?

Janczak’s retaliation claim, however, didn’t survive. Why?

The court noted that, typically, retaliation occurs after an employee has been restored to his or her position only to suffer an adverse employment action after that fact.

But in Janczak’s case, he was never restored to his prior position; therefore his claims fell under the interference theory.

Overtime crisis nearing: 6 steps to avoid pitfalls

It would be hard for any regulatory change to be as impactful as the passage of the Affordable Care Act. But the DOL’s impending changes to the overtime exemption rules may be exactly that. 

As if that wasn’t stressful enough, you’ll have far less time to prepare for the fallout of the overtime rule changes than Obamacare gave you.

The new rules won’t be phased in over the course of a decade like the ACA’s mandates. All signs point to the overtime rules taking effect before the end of 2016.

They’ll affect 2016 budget, staff plans

That means the time to start prepping is now, since the overtime rules will affect your budget and staffing plans for the 2016 calendar year.

And even without the final rules in hand yet (the comment period for the proposed rules just ended), there are steps employers would be wise to take now to brace for them — no matter what form the rules ultimately take:

1. Audit employees’ work hours

As you know, the DOL’s poised to raise the minimum salary threshold to be exempt from overtime to $50,440. So the first step is calculating how many hours your employees who earn less than that are actually working.

Reason: You don’t want to assume they work 40 hours per week only to be blindsided by the fact that they actually work 50 hours per week after the rule changes have reclassified those employees as non-exempt.

Next, you’ll want to weigh the cost of giving raises to those under, but near, the threshold — and who are most likely to work more than 40 hours per week — to avoid overtime obligations.

Note: The DOL may allow you to count nondiscretionary bonuses, and possibly commissions, toward 10% of workers’ salary levels. That may help to drag a few of your fence-sitters over the threshold without you having to give them a raise. But we won’t know until the final rules are issued.

2. Assess the effect on benefits offerings

One question you’ll want to ask yourself: Will being reclassified as non-exempt make some employees no long eligible for certain benefits that they once had?

If so, do you want to change your benefits plans to enable those workers to keep their benefits — or might you want to eliminate those benefits to make up for any costs resulting from having to now pay those workers overtime?

3. Expand time-tracking

No matter how you slice it, companies’ non-exempt employee populations are about to swell.

That will require expanding systems to track more workers’ hours to ensure proper overtime pay.

It couldn’t hurt to visit with your tech department now to start discussing ways to implement or expand time-tracking systems.

4. Revisiting remote work arrangements

It’s time to ask yourself what the rule changes could mean for remote work — checking work email, taking phone calls after hours, etc.

You can dissuade or even prohibit non-exempt employees from doing these things after hours all you want. But here’s the bottom line: Some are still going to do it — and when they do, you need a way to track that work time and compensate them for it.

Again, get together with your IT folks to determine the best ways to track employees’ after-hours/at-home work.

It’s worth noting that the DOL, in its Spring 2015 Regulatory Agenda, said it’s seeking information on “… [T]he use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours …”

As a result, expect some rulemaking on this subject as well — like perhaps a definition of what qualifies as “de minimis” work.

Currently, the FLSA does say that “de minimis” work (typically five minutes or less) done beyond the 40-hour workweek by non-exempt employees is not compensable.

However, the common practice of workers reading and responding to emails off the clock on their smartphones has complicated the issue of “de minimis” work.

5. Create a communication plan

If you’re not going to raise some workers’ salaries — and they’re about to be reclassified as non-exempt — you need a plan in place for how you’ll break this likely upsetting news to them.

Some issues you’ll need to tackle:

  • Punching a clock. More workers are going to have to do it, and it may seem like a demotion. How will you explain why it’s now necessary?
  • Loss of flexibility. For your current salaried workers, being turned into hourly employees means taking time off to go to the doctor or attend a child’s event could result in less pay. Again, how will you break this news to them? And will you let them make up the time?

6. Prepare for changes to the duties test

It appears the DOL may eliminate the “concurrent duties” rule and require employees to spend more than 50% of their time exclusively on exempt duties for them to maintain an exempt classification.

Assume those changes will be adopted and you could avoid unpleasant surprises down the road.

Handling the tricky questions in FMLA intermittent leave

It’s a given: Intermittent FMLA leave is a giant thorn in the side of HR people everywhere. But not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them.

The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members.

The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call.

It’s not always simple, however.

If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility’s not automatic

Companies can successfully dispute bogus employee claims to FMLA eligibility.

Consider this real-life example:

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time.

After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired.

She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her latenesses, she claimed, so each instance should have counted as a block of FMLA leave.

Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition.

The only time it affected her was when it was time to go to work.

Sorry, the court said. Intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.

 That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

Designating leave retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively.

Example: An employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia.

Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.”

The key here is that the company acted quickly – within two days of being notified of the qualifying leave.

The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation.

It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using employees’ PTO

First, a no-no: Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO).

Instead, you can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

The transfer option

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation.

The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same.

And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

A few restrictions: The move can’t be made if the transfer “adversely affects” the individual. Example: The new position would lengthen or increase the cost of the employee’s commute.

Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

Cooperation, please

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations.

Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

Sometimes, it’s as simple as taking an employee aside and saying, “I know you’ve got to go to physical therapy. But these 10 o’clock appointments are really affecting work flow. Could you see about scheduling them for after work hours?”

The firing question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights.

Obviously, workers can’t be fired for taking leave. But employers can lay off, discipline and terminate those employees who violate company policies or perform poorly.

When an employee on FMLA leave is terminated, the DOL decrees that the burden’s on the employer to prove the worker would have been disciplined or terminated regardless of the leave request or usage.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave.

So companies should be prepared not only to prove the business necessity of the move, but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave.

But companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence.

And courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave?

That answer’s not always difficult. Many times, employers don’t realize how badly an employee was doing until they see the mess he or she has left behind.

The good news: A number of courts have upheld employers’ rights to fire employees on FMLA leave – even when the employee’s problems were first discovered when the employee went off the job.

‘You can’t fire me, I’m on FMLA’: Was mistake-prone worker correct?

As you know, taking FMLA leave can’t completely shield an employee from termination, especially when the person’s performance warrants him or her being fired. But the FMLA very much complicates the matter. So what do you need to be able to safely let under-performing FMLA-takers go? 

Answer: Documented evidence that the employee isn’t meeting performance standards.

A recent lawsuit in which the employer’s decision to terminate an employee on intermittent FMLA leave was upheld by a federal appeals court provides a good example of when it’s permissible — and what it takes — to safely let these kinds of workers go.

Multiple stints of FMLA

Elizabeth Burciaga sued her employer, Ravago Americas LLC for FMLA retaliation after she was terminated following several FMLA-related absences.

Burciaga was a customer service representative, who was responsible for contacting sales representatives and customers, receiving and processing orders, scheduling shipments, and resolving customer issues.

She’d been at Ravago for five years, and was considered one of Ravago’s more experienced customer service representatives.

Earlier on in her employment with Ravago, Burciaga had taken FMLA leave on two separate occasions for the birth of her children.

Then, about year after her last leave, she requested intermittent FMLA leave to help care for her son. Her request was granted, and she took several days off on a somewhat sporadic basis to care for her son.

Ravago never expressed any concerns about Burciaga taking leave.

Mistakes crept in

During the time she was approved for intermittent leave, Burciaga began making mistakes.

Examples:

  • Burciaga entered an order for 15,000 pounds of material when the customer ordered 22,500 pounds of material
  • She submitted and shipped material under the wrong customer number
  • She shipped the wrong material to a customer, and
  • She shipped the wrong material to a customer again.

A logistics coordinator was able to catch and correct some of these mistakes before customers or the company was affected. But, after being approached by Burciaga’s manager, the logistic coordinator informed him that Burciaga “habitually made shipping errors.”

Her manager then took the matter to upper management, explaining that someone with Burciaga’s experience shouldn’t be making those kinds of mistakes.

Burciaga was terminated. She was told the company couldn’t tolerate continued shipping errors because they could hurt the company’s reputation.

She then sued for FMLA retaliation.

Retaliation a form of discrimination

The court in this case said FMLA retaliation essentially amounts to discrimination — in which an employer takes an adverse action against an employee for exercising a right.

So the employer had to prove it had a nondiscriminatory reason for firing Burciaga.

After reviewing the company’s documentation, which clearly outlined the mistakes she’d made, the court sided with Ravago and dismissed Burciaga’s lawsuit.

When she balked, the court said Burciaga failed to create a “causal connection” between her FMLA leave and her firing.

Three things the employer had in its favor:

  • It had already allowed Burciaga take FMLA leave in the past with no problems
  • Not once was her FMLA leave brought up in the discussions around her work performance or termination, and
  • It had undisputed evidence that Burciaga was making mistakes that could damage the company’s reputation.

All three factors weighed heavily in the court’s ruling that no connection existed between her FMLA leave and her termination.

Company’s shady-looking ‘RIF’ leads to $145K payout

Firing a disabled employee while he’s out on medical leave is usually a recipe for disaster. But it can be done in limited circumstances. However, the potentially discriminatory nature of this firing was a little too obvious for the EEOC to overlook. 

Meet Doug Johnson. He drove a van and took nursing home patients to medical appointments for his employer Paloma Blanca Health Care Associates, a health and rehabilitation center in Albuquerque, NM.

Almost three years into his tenure, Johnson suffered a heart attack and was diagnosed with a number of other cardiovascular conditions.

He then requested a reasonable accommodation under the ADA in the form of a request for FMLA leave.

Paloma Blanca approved him for 12 weeks of FMLA leave.

So far so good, right?

Fired as part of an ‘RIF’

Five weeks into his medical leave things took a sharp turn.

Johnson was terminated.

Firing a person while on medical leave is enough to perk up the EEOC’s antenna. But Paloma Blanca didn’t stop there.

It notified Johnson that it had eliminated his position and was laying him off due to a “reduction in force.”

Granted, a legitimate RIF is actually one of the ways employers can terminate individuals on medical leave — assuming it could be proven those workers would’ve been let go regardless of their medical condition or leave of absence.

But problem for Paloma Blanca was this looked like anything but a legitimate RIF, at least according to the info contained in the EEOC’s press release on the matter.

No other Paloma Blanca employees were subjected to an RIF at that time, the EEOC said, and there were no department- or facility-wide reductions in force around that time either.

So the EEOC sued Paloma Blanca under the ADA for disability discrimination and for failing to provide reasonable accommodations to a disabled individual.

Perhaps seeing how bad this looked, Paloma Blanca decided to settle the lawsuit by providing Johnson $145,000 in monetary relief.

As part of the settlement, Paloma also agreed to:

  • expunge from Johnson’s personnel file any references to the allegations of discrimination, his participation in the lawsuit or his disabilities
  • review and distribute to employees its policies regarding disability discrimination and retaliation
  • provide its employees with training regarding disability discrimination and procedures for handling requests for reasonable accommodations, and
  • post a notice emphasizing the company’s equal employment opportunity policy and reaffirming its commitment to providing reasonable accommodations for employees and applicants with disabilities.

Now that’s leave abuse: 25-year no-show finally gets himself fired

It’s tough to fight leave abuse these days. But apparently what you face is nothing compared to this organization. 

India’s Central Public Works Department approved Senior Electrical Engineer Shri A.K. Verma for earned leave in 1990. But apparently he must have confused earned leave with retirement, because it’s been 25 years since the department’s seen him.

Still, he was allowed to keep his job until just recently. That’s some impressive leave abuse, although it’s unclear whether or not Verma was paid during his absence.

Verma was finally canned on Jan. 8, 2015. His legacy will be that he managed to game the system for 15 years after only putting in 10 years worth of work (he was hired in 1980).

So what happened? The details coming out of India aren’t very clear.

However, the U.K.’s Sunday Express is blaming India’s seemingly excessive pro-employee labor laws, which it reports “make it hard for staff to be sacked for any reason other than criminal misconduct.”

It wasn’t until those laws were reformed recently that Verma’s case was unearthed and he was terminated, according to the Express, which went on to say: “Prime Minister Narendra Modi has also cracked down on people not turning up to work by making New Delhi bureaucrats sign in at work using a fingerprint scanner. ”

On-again, off-again investigation

A press release from India’s Central Public Words Department, obtained by Business Insider, attempted to explain what exactly happened with Verma.

It obviously leaves more than a few questions unanswered, but here’s the department’s breakdown of the situation:

“Shri A.K.Verma, who joined CPWD as an Assistant Executive Engineer in 1980 went on Earned Leave in December, 1990 and did not report to work thereafter. He went on seeking extension of leave which was not sanctioned and defied directions to report to work. An Inquiry was instituted against him in September, 1992 for major penalty for willful absence from duty. Due to non-cooperation of Shri Verma with the Inquiry and for other reasons, it got delayed and a fresh charge sheet was issued in 2005. The Inquiry Report, establishing the charges was submitted in July, 2007 and the same was accepted by the then Minister of Urban Development in August, 2007. But no further action was taken in the matter.”

Based on that info, it appears all it took for employees to beat out investigations was “non-cooperation.” If you ask us, that doesn’t exactly sound like the department had the most effective investigative system in place.

It wasn’t until Urban Development Minister Venkaiah Naidu took office and ordered a review of pending investigations that Verma got what was coming to him. Otherwise, he might have been able to remain on leave for another quarter-century.

The 10 strangest employee sick day excuses, 2014 edition

As the winter season descends, more people start calling in sick. And you won’t believe some of the excuses people have offered as reasons for taking the day off.

A new CareerBuilder survey looks at how many workers have faked being sick this year, as well as some of the strangest excuses they’ve used while doing so.

Over the past year, 28% of employees have called in to work sick when they were feeling well, down from 32% last year. When asked for a reason, 30% said they just didn’t feel like going in to work and 29% said they wanted the day to relax.

Another 21% took the day off to attend a doctor’s appointment and 19% wanted to catch up on sleep. Meanwhile, bad weather was enough for 11% of employees to take the day off.

The national survey was commissioned by CareerBuilder and conducted online by Harris Poll. It included a representative sample of 3,103 workers and 2,203 hiring managers and human resource professionals across industries and company sizes.

While half (49%) of employees say they have a paid time off program that allows them to use their time off however they choose, 23% of those workers say they still feel obligated to make up an excuse for taking a day off.

‘I didn’t mean to get on that plane, honest’

When asked to share the most dubious excuses employees have given for calling in sick, employers reported hearing the following real-life examples:

  • Employee just put a casserole in the oven.
  • Employee’s plastic surgery for enhancement purposes needed some “tweaking” to get it just right.
  • Employee was sitting in the bathroom and her feet and legs fell asleep. When she stood up, she fell and broke her ankle.
  • Employee had been at the casino all weekend and still had money left to play with on Monday morning.
  • Employee woke up in a good mood and didn’t want to ruin it.
  • Employee had a “lucky night” and didn’t know where he was.
  • Employee got stuck in the blood pressure machine at the grocery store and couldn’t get out.
  • Employee had a gall stone they wanted to heal holistically.
  • Employee caught their uniform on fire by putting it in the microwave to dry.
  • Employee accidentally got on a plane.

Employers strike back

Though the majority of employers give their employees the benefit of the doubt, 31% say they have checked to see if an employee was telling the truth in one way or another. Among employers who have checked up on an employee who called in sick, asking to see a doctor’s note was the most popular way to find out if the absence was legit (66%), followed by calling the employee (49%). As many as 15%t of employers went the extra mile (quite literally) and drove past the employee’s house.

Nearly 1 in 5 employers (18%) say they have fired an employee for calling in sick with a fake excuse.

Shooting themselves in the (digital) foot

Some workers have inadvertently busted themselves online. One in four employers (24%) have caught an employee lying about being sick by checking social media. Of those, 22% have actually fired the employee, but 54% were more forgiving, only reprimanding the employee for the lie.

Flip side: People afraid to take sick days

Turns out there are more employees who refuse to take sick days than those who make up fake excuses to get the time off — a majority of workers said they feel they don’t have the luxury to take a sick day.

More than half of employees (53%) say they have gone into when work sick because they felt the work won’t get done otherwise, and 2 in 5 workers (38%) did the same because they can’t afford to miss a day of pay.

‘Tis the season

Employee absentee rates seem to peak with flu season. December is the most popular time of year for employees to call in sick, according to 21% of employers, followed by January (17%) and February (14%).

Despite higher absentee rates during the holiday season, only 8% of employees say they have ever faked being sick during this time. Of those who have, most did it to spend time with family and friends (69%), while others wanted to holiday shop or decorate for the season.

Who takes the most sick time?

Employees in professional and business services called in sick most often (35%) in the past year, followed by closely by sales employees (34%). On the other end of the spectrum, employees in the IT, retail and leisure and hospitality industries were least likely to call in sick this past year (22%, 21% and 20%, respectively).

Oversight on FMLA form costs employer $173K

There’s one element of the Family Medical Leave Act (FMLA) that doesn’t get a lot of press. But forgetting about it could be a very costly mistake.

Here’s a question for your company: When you request FMLA certification from an employee, do you make it clear — in writing — what the consequences are of failing to provide an adequate certification?

If not, you can’t take a negative action against the employee for failing to provide an adequate certification — like denying leave or, even worse, terminating an employee because the person’s absences didn’t count as FMLA leave.

It’s all outlined in black and white under section 29 C.F.R 825.305(b) of the FMLA.
No medical certification, no excused absence

FedEx recently failed to comply with this regulation, and ended up having to shell out $173,000 in back pay and damages to an employee it terminated after she failed to provide a medical certification.

Here’s what happened:

Tina Wallace was a senior paralegal at the delivery service company, and she suffered from a variety of health problems. When her health condition required her to take leave, FedEx offered her FMLA leave and asked her to complete medical certification forms and return them within 15 days.

Wallace, however failed to return the forms within the 15 days because, as she later told a court, “she could not bring [herself] to contact them [FedEx] or see them or go to them to provide those [forms] to them because of … the way that [she] was feeling …”

When the forms didn’t arrive on time, Wallace’s supervisor then tried contacting her numerous times by phone, claiming he received a busy signal each time. He also sent Wallace an email stating that he’d received no documentation from her, but he didn’t receive a “read receipt” indicating that Wallace had opened or seen the email.

Shortly thereafter, FedEx terminated her for failing to comply with its attendance policy, which states “[e]mployees who are absent for two (2) consecutive workdays without notifying a member of management within their organizational hierarchy shall be considered to have voluntarily resigned their employment with [FedEx].”

Wallace then sued for FMLA interference.

At trial she claimed she would have turned in the medical certification forms if she’d known the consequences of not doing so.
Court: No consequences, no legal termination

FedEx fought her suit, claiming that she was never entitled to FMLA benefits because she failed to return the medical certification form required under the law — and if she wasn’t entitled to benefits, FedEx couldn’t have interfered with them.

But a court denied this motion, ruling a reasonable jury could conclude that FedEx failed to comply with the FMLA requirement to explain the consequences of not returning a medical certification form.

Wallace’s case then went before a jury, which ruled she should receive $173,000 in back pay and damages — and that award was later upheld by the U.S. Court of Appeals for the Sixth Circuit.

Fixed leave policy costs company $1.35M

A recent Equal Employment Opportunity Commission (EEOC) lawsuit highlights the dangers of fixed leave policies. 

Princeton HealthCare System, which operates several medical facilities, will pay $1.35M to settle a disability discrimination lawsuit stemming from a fixed leave policy and leave tracking system it had in place.

According to the EEOC, Princeton’s leave tracking system only took into account the requirements of the Family Medical Leave Act (FMLA) when it came to handling employees’ medical leaves.

This resulted in two actions, which spurred the EEOC’s suit:

  • terminating employees who weren’t yet eligible for FMLA after a few absences, and
  • automatically terminating employees once they’d been out on FMLA leave for more than 12 weeks.

According to the EEOC, such actions robbed employees of rights they may have been entitled to under the Americans with Disabilities Act (ADA).

It says hard-line fixed leave policies slam the door on the chance for employees to receive reasonable accommodations under the ADA that may allow them to return to performing the essential functions of their jobs — and reasonable accommodations can include medical leave given in addition to FMLA leave.

The EEOC sued Princeton, claiming it failed to at least seek out reasonable accommodations for employees who were absent for medical-related reasons.

As part of the settlement agreement, Princeton has also agreed to:

  • no longer require employees returning from disability leave to present a fitness-for-duty certification stating they are able to return to work without any restrictions (because that too slams the door on the possibility of some employees receiving reasonable accommodations that may allow them to return to their jobs)
  • not subject employees to progressive discipline for ADA-related absences, and
  • provide ADA training to its workforce.

The $1.35M will be distributed to those unlawfully terminated under Princeton’s former fixed leave policy.

The EEOC also said in the future Princeton must engage in the interactive process with ADA-covered employees, including employees with a disability related to pregnancy, when deciding how much medical-related leave is needed.

Always enter the interactive process

While it appears the EEOC is taking a hard-line stand against fixed leave policies here, what it’s really trying to do is make employers aware of their responsibilities to enter the interactive process whenever a medical condition interferes with an employee’s ability to perform his or her job.

When such conditions are in play, even if an employee has already been granted a full 12 weeks of FMLA leave, employers must enter the interactive process to see if a reasonable accommodation exists that would allow affected employees to return to work.

Companies can have policies that impose caps on how long workers can be on leave. But they must be flexible enough to allow room for reasonable accommodations — including more leave — that help employees return to work.

How much medical leave is too much? In a recent landmark decision by the U.S. Court of Appeals for the Tenth Circuit, it was ruled anything beyond six months is generally not reasonable.

Court decision defines ‘reasonable’ medical leave

So many companies have landed themselves in legal trouble over “inflexible leave policies” — those requiring workers to return to work after a certain amount of leave — that many firms are hesitant to enforce such a policy any longer. But a recent appeals court ruling could mean companies have more leeway in this area than they thought.

The case is Hwang v. Kansas State University, and it hinged on the idea that all inflexible leave policies are inherently discriminatory.
Needed more than 6 months

Some background on this case: Kansas State had granted Hwang six months of leave. After she exhausted that leave time, Hwang requested additional leave.

Kansas State rejected Hwang’s request, citing its company policy which capped employees’ leave at six months, and she sued under the Rehabilitation Act — a law that covers government workers with disabilities.

It’s very similar to the Americans with Disabilities Act (ADA), and it prohibits the discrimination on the basis of an individual’s disability.

In Hwang’s lawsuit, she cited EEOC guidance and argued that Kansas State’s inflexible leave policy was inherently discriminatory. She also claimed Kansas State was required to provide her with additional leave as a reasonable accommodation.
A timeline for employers?

The court not only ruled in favor of the employer, it also offered a succinct explanation on why Hwang’s request wasn’t feasible.

The court commented on Hwang’s request for additional leave, saying it:

perhaps goes without saying that an employee who isn’t capable of working for [six months] isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

That statement is significant in and of itself because the court is essentially shooting down the argument that additional leave is a reasonable accommodation in most situations — a stance many employers feared courts were leaning toward.

Even more significant, however, is what the court said regarding the company’s six month leave policy and its ability to terminate workers who can’t return to work after their leave time is over.

According to the court, it’s:

difficult to conceive how an employee’s absence for six months … could be consistent with discharging [i.e., performing] the essential function of most any job in the national economy today.

With that statement, the court seems to be spelling out a timeline employers can use to deny additional leave, claiming more than six months of leave presents an undue hardship to business. In the past, courts have ruled that additional leave must be considered as a reasonable accommodation, but intentionally avoided mentioning specific time periods.

In fact, the closest we’ve seen is a ruling that touched on additional leave being unreasonable is a case where a court dismissed the idea that “indefinite” leave could be considered an accommodation under the ADA.

Here the court seems to be saying that keeping an employee’s position open for longer than six months would almost always present an undue hardship on the company.

Policy can ‘protect rather than threaten’

The court also offered some interesting commentary on how inflexible leave policies impact workers with disabilities.

As the court put it, these policies:

can serve to protect rather than threaten the rights of the disabled by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.

Although this decision’s certainly welcome news for employers, it’s important to remember that it’s just one appeals court — other federal circuits could certainly have ruled differently. Still, if your company ever finds itself in a similar legal snarl, it’s good to know that there is existing case law that argues in your favor.