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 Appx. 392 (4th Cir. 2013) (unpublished) (hat tip to Employment Law Matters for bringing this case to my attention).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.
Labor and Education Insights 
I have a question related to ADA/FMLA and wrongful termination. Before I go any further, I’d like to ask if you respond to questions posted here. Thanks.
Hi Geoff, I’d be happy to see if I can answer your question but I should warn you that the best response I may be able to give is to have a conversation with a local attorney. Let me know your question and I’ll see about getting you an answer.
Thanks. I’ll try to brief, but this will nevertheless be lengthy.
I began work for my employer in June 2013. In August, I sustained a non work-relayed injury which required surgery to my arm. I missed 3 shifts and returned to work with a scheduled surgery date. After surgery, I missed 3 shifts, returning to work with restrictions. I provided my employer with documentation from the MD. My restrictions did not effect my carrying out my job duties, and everything was going smoothly.
On 10/3, I was told I would need to perform duties that were clearly listed on my restrictions, when I came into work 10/4. This came from a new administrator who I have never seen or met. This was work that I would not normally do. I told the administrator that I could not perform these duties, and was told there was no alternative. I told him I would not be in to work if it meant jeopardizing my recovery. I did not report for work and was placed on medical leave by employer on 10/4/13. I was told my job would be there when I was cleared 100% by my surgeon. I mentioned “reasonable accommodation”, since my normal duties were not affected by the restrictions, and the administrator ignored the issue. At that time, I requested documentation stating his rationale for medical leave, and the terms/conditions I needed to meet for return. He told me he would send this. The administrator called me back shortly thereafter and asked me to fax a copy of my restrictions to him, stating “I can’t find your file”. I found this strange, but complied with his request. I never received any documentation related to my medical leave. Follow-up calls/msgs left were ignored.
On 12/11, the MD lifted all restrictions. The timing was within the anticipated recovery time noted on the restrictions. I contacted the HR office to inform them and to see what they needed me to do to return to work. I was told I had been terminated, and that a termination notice had been sent. This was news to me. I never received any notice. They would not tell me the date of termination, but said I was terminated because I didn’t qualify for FMLA, and had used all my PTO time. It is true I didn’t qualify for FMLA, as I had not been working there for a year, but I’m not sure how that relates to my being terminated. I also had no PTO time, as I used it for the time I had missed due to the injury/surgery. Again, I don’t see the relevancy here, and I told them this at HR.
HR then did some backpedaling (my opinion), and called me back saying it looked I was eligible for re-hire. I told them I didn’t want to be re-hired, but wanted to be re-instated to the position I was told would be there when I returned. I also told them again…that I wanted documentation re: medical leave and termination. I was told I would get that, and again, I received nothing. We set a tentative date of return for 1/10/14. I was told that my job would be the same as it was, although they would not say if it was a re-hire or reinstatement when I asked.
On 1/09/14, I received call from administrator telling me to come in for drug screening and to complete background check paperwork (I had just had a background check in June 2013). I mentioned that this sounded like a new hire, and he ignored my comment. I told him that before I returned to work, I wanted the documentation I had been requesting since being placed on medical leave. He told me it would be sent via email and post. I never received it.
On 1/23/10, I went to the HR dept. in person and requested to view my file. I was told I needed to submit a written request, which I expected. The woman I spoke with stonewalled me, refusing to tell me where my termination notice was. She also told me I was never placed on medical leave, because I didn’t qualify for FMLA. I asked, “If I wasn’t placed on medical leave…then what was I placed on that has kept me out of work since 10/4/13″?
Her reply…”I don’t know…you just didn’t come in to work, I guess”. With that, she turned around and left the room. End of conversation.
I think there are ADA/reasonable accommodation issues here. I should never have been placed on medical leave. I believe my refusal to do work that was restricted was viewed as insubordination and I was punished. If I had documentation for medical leave, I could have at least applied for SSI short-term disability, as I understand it (no disability offered thru employer), and perhaps unemployment. As a result, I have spent my savings and gone into debt covering basic living expenses.
I plan to submit a written request to HR via certified mail see my file, but I am not optimistic that I will receive a response.
Are they justified in terminating me? Shouldn’t my file have a copy of the notice? Should my file also have some documentation regarding my being placed on medical leave? Seems so to me. I believe my employer knows they have messed up, and are going to string this out, hoping I will go away. I will not…until I know for certain that I have no other alternative.
Apologies for the length. Thank You.
Hi Geoff, there are certainly aspects of your situation that raise some question marks in my mind as to how you were treated. Unfortunately, I think at this point you would either need to discuss the matter further with a personal attorney or contact the Equal Employment Opportunity Commission to file a complaint. Many discrimination / civil rights attorneys provide a free consultation so you should be able to discuss your situation without any additional cost to yourself. Alternatively, the EEOC is the organization responsible for handling claims of disability discrimination / failure to accommodate, and their process is designed such that you should not require an attorney for the initial filing process.
Please be aware that there is a strict 180 time limit to claims of this sort, so be sure to act quickly.
I’m sorry I couldn’t provide more information but I do wish you good luck.
Thanks for the sound advice. Much appreciated 🙂
Pingback: True or False: I cannot be disciplined any time I visit a healthcare provider? | Labor and Education Insights