The Family Medical Leave Act (FMLA) is one of the most important protections for workers dealing with their own medical issues or the health issues of a family member. It provides time off for medical care or recuperation and guarantees that you cannot be disciplined or terminated for taking the leave (if you need to get acquainted with the basic protections of the FMLA, here is a video presentation I made with all the info). Unfortunately, while the FMLA does protect you from termination for taking medical leave, there still may be other grounds that an individual can be terminated even while on leave. Additionally, many employers now require some amount of call-in or work done while on leave, but the contours of what exactly can be required are fuzzy. Hit the link for a few cases that illustrate these aspects of the FMLA…
When it comes to terminations, many people think that just because they are on FMLA leave they cannot be terminated for any reason. However, a recent decision from the 4th Circuit Court of Appeals (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) demonstrates that an employee can still be in danger of termination while on leave. See Mercer v. Arc of Prince Georges County, Inc., 532 Fed. Appx. 392 (4th Cir. 2013) (unpublished) (hat tip to Employment Law Matters for bringing this case to my attention).
In Mercer, an employee was seriously injured in a car accident and went on FMLA leave for just over a month. While out on leave, the employee’s coworkers, who were covering her responsibilities, found evidence that the employee had failed to file critical paperwork for several of their clients, resulting in economic harm. The employee had previously been disciplined for similar misconduct so the employer instigated a full review of the employee’s files. During the investigation, the employer discovered that the employee had failed to file paperwork for more than 60% of her clients. The employer than terminated the employee. The employee brought suit for FMLA retaliation and FMLA interference. The trial court dismissed the employee’s claims and the employee appealed.
On appeal, the Court acknowledged that generally terminating an employee while they are on leave, or shortly thereafter, raises a concern about retaliation. However, the court canvassed the mass of evidence gathered by the employer and determined that the reason for terminating the employee was not pretext. The court noted that “being on FMLA leave does not provide an employee any greater rights than he or she would have had without taking leave” and upheld the trial court’s dismissal.
Mercer shows that while the FMLA provides great protection for taking leave, it does not act as a shield for general work issues. Mercer is somewhat unique in the amount of evidence of wrongdoing compiled by the employer so individuals who do face discipline or termination either while on leave or just after should contact an employment attorney and MNEA members should contact their local UniServ Director.
Turning from terminations to work done while on FMLA leave, courts have been relatively clear that employers can require that employees follow call-in procedures even if those procedures require daily check ins. A recent decision from the federal Northern District of Ohio looks at what further work requirements an employer can place on an employee on leave. See Vess v. Scott Med. Corp., 20 Wage & Hour Cas. 2d (BNA) 759 (N.D. Ohio, 2013) (hat tip to the Laconic Law Blog for this case).
In Vess, an employee took FMLA leave to undergo knee surgery and rehabilitation. While on leave, the employee completed a number of job duties. Among a slew of other responsibilities (listed at length in the opinion) the employee was repeatedly contacted by coworkers, required to complete trainings, assist (and eventually complete) data entry procedures, submit evaluations of subordinates, and redirecting calls to coworkers. After returning from leave, the employee was terminated allegedly due to an incident at work.
The trial court noted that “fielding occasional calls about one’s job while on leave… does not abrogate or interfere with… FMLA rights.” (citing Reilly v. Revlon, Inc., 620 F. Supp. 2d 524 (S.D.N.Y. 2009)). Similarly there is no FMLA interference if contact is limited to merely “passing on institutional knowledge to new staff” or “providing closure on completed assignment.” However, the court found that, taking the facts in the light most favorable to the plaintiff, the employees responsibilities on leave went far beyond the acceptable bounds. While not so holding itself, the court found that a reasonable jury could conclude that the work expectations interfered with the employee’s FMLA rights and allowed the matter to proceed to trial.
Prior to Vess employees may have taken signals from the courts related to absence procedures for employees on leave and attempted to stretch them to cover any employment responsibilities. However, Vess demonstrates that there is a clear line where those responsibilities would begin interfering with FMLA rights and create liability for the employer. Employees should be very careful to scrupulously follow any call-in procedures and be sure to contact an expert if they feel their employer is requiring too much of them while on leave.