recent fmla decisions · james worked as a banquet steward, a position which required him to lift...

STEPHEN P. POSTALAKIS B L A U G R U N D , H E R B E R T , K E S S L E R , M I L L E R ,

M Y E R S & P O S T A L A K I S , I N C O R P O R A T E D 3 0 0 W E S T W I L S O N B R I D G E R O A D , S U I T E 1 0 0

W O R T H I N G T O N , O H I O 4 3 0 8 5 ( 6 1 4 ) 9 2 3 - 3 1 1 2

S P P @ B H M L A W . C O M

O H I O A S S O C I A T I O N O F C O U N T Y B O A R D S S E R V I N G P E O P L E W I T H

D E V E L O P M E N T A L D I S A B I L I T I E S J U N E 2 0 1 4 P E R S O N N E L C O U N C I L

Recent FMLA Decisions

INTRODUCTION

!  Does the FMLA require an employer to provide a “light duty” assignment?

!  Does FMLA allow pre-determination of eligibility? !  Can an employee be terminated for abusing FMLA

leave? !  Does an employer violate the FMLA when it requires

a fitness for duty examination after the employee returns to work?

Does the FMLA require an employer to provide a “light duty” assignment?

!  Seventh Circuit Court of Appeals held that neither FMLA nor ADA creates an obligation for an employer to provide light duty work to an individual who is unable to perform the essential functions of his job, with or without a reasonable accommodation. !  James v. Hyatt Regency Chicago (7th Cir. 2013)

!  James worked as a banquet steward, a position which required him to lift and move objects around the banquet area. He had vision issues, which Hyatt accommodated by increasing the print size of his work assignments and schedules. He injured his eye during a non-work related incident and was forced to miss work for surgery. When Hyatt learned his absence was due to a medical reason, it sent James FMLA paperwork.

Can an employer force an employee to use FMLA leave if the employee wants to work?

!  In April 2007, James gave Hyatt a doctor’s note stating that he could return to “light duty” a short time later, but the doctor did not state how long James would need to work in the light duty assignment. Hyatt approved FMLA retroactively to cover James’ absences.

!  In May 2007, James provided Hyatt information that indicated he was unable to work in any capacity and that his condition could lead to permanent incapacity. He received disability benefits at this time.

!  Although James exhausted his FMLA leave, his CBA protected his job for one year. In August 2007, James submitted conflicting paperwork to Hyatt, one saying he could work although visually impaired and another saying he was incapable of working in any capacity. In September 2007, James was cleared to return to work with restrictions, which would have precluded him from returning to his position. Hyatt tried to communicate with James and his health care providers, with little success.

Can an employer force an employee to use FMLA leave if the employee wants to work?

!  James sued Hyatt, claiming that the employer interfered with his FMLA leave and discriminated against him under the ADA by not returning him to light duty work in May 2007.

!  The courts found in favor of Hyatt: !  “If an employee cannot perform an essential function of his original

position because of a physical or mental condition, the employee has no right to job restoration to a different position under the FMLA”

!  The FMLA does not require an employer to restore an employee to a light duty position (which is neither the original position nor an “equivalent”).

!  Courts found that Hyatt was trying to communicate with James, including contacting his health care providers, and therefore, did not violate the ADA.

Does FMLA allow pre-determination of eligibility?

!  If employee comes to you and says I have a medical problem and need to take time off in the future, what do you say? !  Hopefully, not what was said in Hurley v. Kent of Naples, Inc.

!  Hurley told his boss he needed 11 weeks of vacation, attaching a schedule of dates; his boss said no, and Hurley replied that his physicians told him that his need to take time off was “no longer optional.” So Hurley was immediately fired.

!  Hurley obtained an FMLA form from his doctor, who wrote that Hurley was being treated for depression and that the duration and frequency of incapacity were unknown.


!  Hurley sued, claiming a violation of the FMLA and that his termination was retaliatory. Although he contended that he suffered from a serious chronic medical condition, he did not allege that he was unable to work or incapacitated.

!  At trial, Hurley’s physician denied that he had determined that Hurley needed medical leave for the dates in the vacation schedule that Hurley sent to his boss. The physician also testified that he had never even seen the schedule that Hurley submitted and would not have certified FMLA leave for future dates.

!  Hurley admitted at trial that he and his wife picked leave days without consulting with health professionals, but that he planned to schedule treatment as the dates for leave approached. !  Jury found for Hurley, awarding over $1M.


! Hurley argued that, in order to bring an interference or retaliation claim, he only had to "potentially qualify" for FMLA leave. 11th Circuit Court of Appeals disagreed.

! Although there was evidence that Hurley provided sufficient notice of leave, the Court rejected the idea that he needed only to potentially qualify to assert a valid interference or retaliation claim under the FMLA, finding “notice of unqualified leave does not trigger the FMLA's protection.”


!  The Court noted that Hurley did not directly respond to the argument that he did not qualify for FMLA leave. Hurley contended only that his leave was protected because his depression was a chronic serious health condition. !  The Court pointed out that the FMLA does not cover any leave that is

medically beneficial simply because an employee has a chronic health condition. " Leave must be necessary because of a "period of incapacity or

treatment for such incapacity due to a chronic serious health condition."

!  Because Hurley admitted that he did not request leave because he was incapacitated and could not predict the periods of incapacity from his condition, he had not met his burden of proving that his leave request qualified for protection under the FMLA.


!  Hurley case highlights what you should do when an employee says he/she needs time off: !  Decision makers need to recognize request for FMLA leave. Need to

inquire whether leave is necessary now or in the future. !  Even if employee has a chronic condition, obtain medical

certification to confirm whether the employee is actually incapacitated. The Court noted that Hurley did not directly respond to the argument that he did not qualify for FMLA leave. Hurley contended only that his leave was protected because his depression was a chronic serious health condition.

!  It’s ok to approve time off in the future (for surgery or other treatment), but should always get medical certification, especially if employee just says “I need time off.”

Can an employee be terminated for abusing FMLA leave?

!  Anderson v. Wellman Products Group (9th Dist. 2004), 157 Ohio App.3d 565. !  Employee’s request for leave under FMLA does not

exempt him/her from following company policies, nor does it shield him/her from discipline for violation of company policies.

!  “If an employee's discharge would have occurred regardless of her request for FMLA leave, then that employee may be discharged even if discharge prevents her exercise of any possible right to FMLA leave.”

General Principles

! Employer can discipline an employee while on FMLA leave, where independent basis for discipline exists.

! FMLA is not a shield for employees to violate company policies.

! FMLA does not require an employer to retain an employee until his FMLA leave ends, if the employee had committed dischargeable misconduct before or during the FMLA leave.

Discharge

!  Nor does FMLA shield an employee from termination simply because the alleged misconduct concerns use of FMLA leave. !  Numerous courts have upheld the discharge of employees

who lied to cover up their abuse of approved FMLA leave. !  Moonlighting while on leave in violation of policy.

!  Other bases: !  Violation of code of conduct policies. !  Performance issues. !  Dishonesty. !  Unexcused absences unrelated to FMLA leave.

Discharge for dishonesty

! Lineberry v. Detroit Medical Center et al., No. 11-13752 (E.D. Mich. Feb. 5, 2013). ! Employer had a reasonable belief that its

employee was abusing her FMLA leave because, it concluded, she was dishonest when she was confronted with questions about her Facebook postings of vacation pictures taken while on FMLA leave.


!  Lineberry was a nurse and injured herself at work. Detroit Medical Center approved her for FMLA leave.

!  While on FMLA leave, Lineberry took a planned, prepaid trip to Mexico. Her physician provided an affidavit that the trip was not as physically demanding for her as performing her work duties and would not conflict with her recovery.

!  During her vacation, Lineberry posted numerous pictures on her Facebook page. !  These showed her engaging in and participating in such

activities as riding a motorcycle and holding bottles of beer. !  She also posted other photographs that showed her visiting a

big-box home improvement store, holding her grandchildren, and taking online classes.


!  When first questioned, Lineberry said she used a wheelchair at all airports. When questioned later and confronted with the Facebook photos, she admitted she had lied about the wheelchairs. ! DMC terminated her employment for dishonesty and

falsification. !  Under the FMLA, an “employee has no greater right to

reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”

Fitness for Duty Certification

!  Employer may rightfully terminate an employee for failure to comply with notification and medical certification procedures inherent in FMLA regulations.

!  29 C.F.R. §§825.312 and 825.313 permit an employer to require a returning employee to provide a fitness for duty certification through a uniformly applied policy. An employee who does not provide a fitness-for-duty certification or request additional FMLA leave is no longer entitled to reinstatement under the FMLA.

!  Unless the employee provides either a fitness-for-duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded, the employee may be terminated.

Does an employer violate the FMLA when it requires a fitness for duty examination after the employee returns to work?

!  White v. County of Los Angeles !  White was a District Attorney Investigator and required to obtain “peace

officer status.” !  She had depression and began behaving oddly, including ignoring

protocol and training, putting herself and others in harms way, and possible perjury. Because of her behavior, an investigation was commenced.

!  White took FMLA leave to deal with her depression. She later returned to work and provided a medical certification that she was able to perform the essential functions of her position.

!  The County returned her to work, but immediately placed her on administrative leave based upon the investigation. Later, the County asked her to undergo a fitness for duty examination based upon her behavior before her FML A leave. !  White refused and filed a lawsuit.


!  Although trial court found that employee could only be evaluated after taking FMLA leave based upon conduct that occurs after the return to work, the appellate court reversed.

!  Because White returned to work, the FMLA was no longer at issue. Rather, upon her return to work, the employer could seek a fitness for duty examination in accordance with the ADA.

!  Court found that the fitness for duty examination was “job-related and consistent with business necessity” because White she put her own safety in danger, could not react properly in tactical situations, and gave unprofessional and false testimony. As a peace officer, White had to be free from physical, emotional, and mental conditions.


! Have to remember that, under the FMLA, the employee’s physician certifies that he/she is able to return to work.

!  Since you cannot seek a second opinion in that situation, your obligation is to return the employee to work.

!  If you have concerns about the employee’s ability to perform the job, based upon conduct before or after FMLA leave, the ADA gives you an avenue to do so, with a physician of your choice.

QUESTIONS?

THANKS FOR ATTENDING!

recent fmla decisions · james worked as a banquet steward, a position which required him to lift...

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