The U.S. Eleventh Circuit Court of Appeals recently reversed a decision of a U.S. District Court in Florida involving the Family Medical Leave Act (FMLA). As revealed by the court’s reversal, there are some important lessons to be learned about complying with the FMLA.
A social worker employed by a home healthcare employer began taking intermittent leave in June 2013 under the FMLA to care for her ill parents. (The FMLA allows intermittent leave, which is an issue that often arises during litigation.) Between June 2013 and February 2014, the employer approved the employee’s requests on various dates. The employer required the employee to take earned personal time off (PTO) concurrently with her FMLA (as allowed by 29 C.F.R. § 825.207(a)).
In March and April 2014, the employee took unforeseeable FMLA leave for nearly 2 weeks to care for her mother. Specifically, she requested leave for March 21 and 24. She didn’t return to work until March 26, but called in to her supervisor while she was absent.
While the employee was on FMLA leave, a new human resources (HR) manager began working for the employer.
The new HR manager requested an updated medical certification from a healthcare provider to show that the employee’s parent had a health condition that qualified for FMLA leave. (Requesting an updated certification is permitted by 29 C.F.R. § 825.305(a).)
When the employee returned to work on March 26, the chief executive officer warned the employee that she could be terminated if she was working for another employer. On March 28, the new HR manager requested, in addition to the medical certification, the employee provide travel receipts or healthcare provider receipts to support the employee’s need for intermittent use of FMLA leave when a 30-day advance notice isn’t provided.
On March 31 (after her mother had been hospitalized on March 28), the employee requested FMLA for April 2, 3, 4, 7, and 8 (April 5 and 6 were a weekend) and for April 14 through 18. The employee returned 1 day early on April 8. On that day, the new HR manager emailed her a request for receipts that showed where she was. The employee responded that she had provided both a medical certification and note from the doctor indicating that the employee had attended an appointment with her mother on April 7. The employee asked for clarification of what receipts were needed. About an hour later, the new HR manager sent a second email message requesting food receipts, anything from the hospital (such as discharge papers), and receipts for lodging, food, or gas in the vicinity of her parents’ home. The message also indicated that the employee’s absences were affecting her job performance by compromising the quality of care provided by the employer.
When the employee denied that the quality of care was being compromised, the HR manager responded, on April 30, with a list of deficiencies:
- Care plans not being updated on a timely basis.
- One care plan not completed.
- Incomplete time sheets.
- Failure to coordinate the work of the bereavement group.
Five days later, the employer terminated the employee, indicating two additional deficiencies that had occurred on April 29:
- Not updating her care-plan notes before leaving work.
- Leaving the building without authorization during a state survey.
In November 2014, the employee filed a lawsuit. The Florida U.S. District Court granted the defendant-employer’s motion for a summary judgment. When a court decides a case on the basis of a motion for summary judgment, the court assumes facts most favorable to the non-moving party (the plaintiff-employee in this case) and then makes the decision as a matter of law, thereby removing the need for a jury trial. So this means the employer “won the first round” in the trial court.
The employee then appealed the decision to the U.S. Eleventh Circuit Court of Appeals.
Appellate court’s decision
The Eleventh Circuit noted that Congress enacted the FMLA to balance the demands of the workplace with the needs of families. The court also noted that the FMLA makes it illegal to interfere with employee rights under the FMLA and to retaliate against an employee for using FMLA leave. The appeals court reversed the district court’s ruling.
To prove an interference claim, the plaintiff must show she—
- Had a benefit under the FMLA.
- Was discouraged from using her leave, regardless of the motivation of the employer.
- Experienced some harm, such as the loss of a job.
In this case, the Eleventh Circuit found the plaintiff-employee had presented sufficient evidence for a jury to conclude that the employer interfered with her FMLA rights. In particular, the court said the clearest example of interference was the message from the HR manager to the employee that said: “Your continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.” The court said a reasonable jury could conclude this was a warning to the plaintiff to stop using FMLA or face termination.
Furthermore, the court found that requests for gas and travel receipts to prove the need to take FMLA leave could also discourage the use of FMLA leave. The court noted that when an employee takes unforeseeable leave (with less than 30 days’ notice), the employee must—
- Provide notice as soon as practicable.
- In the way the employer normally expects (usual notice requirements).
- Respond to employer questions that determine whether an absence qualifies for FMLA leave.
The court indicated that the employer, by requesting travel receipts, appeared to be trying to determine whether her parents were truly sick, but there was no evidence explaining that it had any reason to doubt her truthfulness. Furthermore, the request for receipts appeared to be “made up on the spot,” not part of the employer’s standard notice requirements.
To prove a retaliation claim, the plaintiff must show the employer intentionally discriminated against her for having exercised an FMLA right (that the employer had an impermissible reason for taking its actions). The claim may be proved by direct or circumstantial evidence. In the absence of direct evidence, the court will apply the McDonnell Douglas burden-shifting analysis. In the first step, the employee must show that—
- She engaged in a protected activity.
- She suffered an adverse employment action (such as being terminated).
- The adverse employment action was related to the protected activity.
The court found the plaintiff had met these requirements.
In the second step of the McDonnell Douglas analysis, the employer can rebut the employee’s assertions by showing a legitimate, nondiscriminatory reason supported the adverse action. In this case, the employer, of course, stated that the termination was caused by poor job performance.
Then in the third step, the employee must present evidence that the employer’s stated reasons were not the real reasons for the adverse action. The court noted that the employer had no problems with intermittent leave until March 2014. Then she was terminated in early May, roughly 2 months after the new HR manager took over. The court found that these facts could lead a jury to conclude that the poor job performance was a pretext for terminating the employee. Furthermore, messages from the new HR manager connected the poor performance to the FMLA leave.
The Eleventh Circuit reversed the grant of summary judgment and remanded the case for trial.
1. When HR professionals begin new jobs, they should carefully review personnel files before taking any adverse employment actions.
2. One of the first things new HR professionals should do is review the employee handbook to make sure there are no glaring deficiencies, such as a failure to indicate what type of documentation may be required for unforeseeable FMLA leave.
3. Although the personnel file seems to have been well documented for the most part, there was no documentation about why the employer thought the employee might be working for another employer or why the employer thought the employee might not have really been taking care of her parents. Ensuring that all personnel issues are properly documented is extremely helpful to defend against claims that may crop up later.
4. When an employee presents a medical certification and a doctor’s note that indicates that the employee accompanied a parent or other qualified family member to a medical appointment, an employer probably ought to give up on the idea of proving that the employee is abusing her FMLA leave—unless the employer has really strong contrary evidence.
5. Always be wary of taking adverse actions close to the time when an employee uses FMLA leave (typically 3 to 4 months). Courts call this “temporal proximity,” and it almost always raises suspicions of some type of cause-effect relationship. When temporal proximity is involved, it’s wise to seek legal counsel.
6. Never, ever tell an employee that his or her poor job performance has been caused by the time away from the job when that employee has taken FMLA leave. In such cases, the employer should look for ways to overcome the deficiencies. For example, in the case of home healthcare providers, it may be wise to seek a temporary social worker to fill in for the absent one. In the medical field, this is often referred to locum tenens and there are agencies that specialize in providing this type of service.
The bottom line is that FMLA issues are tricky to navigate and carry potentially expensive consequences if not handled correctly. This case is another reminder to treat these types of claims with care.
For more information, see Diamond v. Hospice of Florida Keys, Inc., U.S. Eleventh Circuit Court of Appeals, decided on January 27, 2017.
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