FMLA

Most employers today know what the Family and Medical Leave Act (“FMLA”) requires, i.e. job protected leave for employees working for employers with 50 or more employees. But most employers know very little about what the law prohibits, namely both interference with and protection against retaliation when an employee exercises FMLA rights. As part of my practice, a client recently posed a very interesting question about possible FMLA interference: when an employee is out on FMLA leave, can the employer require an employee to periodically check in to update the employer on their medical status or does having that sort of interaction with the employee constitute wrongful FMLA interference? The answer to this question, like many in this area of the law, requires an employer to proceed with some caution.

Legally, an employee on FMLA leave is neither entitled to be “left alone,” nor is completely relieved from responding to an employer’s discrete inquiries. Fielding occasional calls about one’s job while on leave is deemed a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, or even giving a quick update on the employee’s on-going medical status, employers do not violate the FMLA by making such calls or expecting employees to keep them updated on such topics. Moreover, if the employer has designated call in procedures or policies that an employee must follow while on FMLA, the employee is expected to follow them if they do not conflict with the leave rights granted under the FMLA. A big legal “no-no,” however, is assigning any work to or expecting that the employee will perform any job services while on leave. That is a sure invitation for an interference claim.

While contacts with an employee are allowed while on FMLA, the real legal difficulty is that there is no legal standard or consensus on the amount of potential contacts an employer can have with an employee while out on FMLA leave. The cases talk about “de minimis” contacts not interfering with FMLA use without stating how many of those kinds of contacts can happen. So, what exactly is a sufficiently small enough number to not get the employer into trouble? Over 12 weeks of leave, once a month would seem fine, especially if the employer has a valid reason for the contact, such as a quick question about a work file or confirming an expected return to work date. More than that would likely depend on the presenting circumstances for the required contact. In this area, when all is said and done, seemingly less is better-the fewer times you need to speak to your employee, the better.

Therefore, based upon the foregoing, employees who need to reach out to an employee on FMLA leave are best served by doing so only sparingly and when the contact is supported by a legitimate business reason. And, most importantly, do not demand that an employee perform any sort of work during their FMLA time. Even when the employee volunteers to do so, it is best for the employer to say no to ensure that there is no chance of any misunderstanding by the employee that working on FMLA leave is an expectation of the employer.  

Federal courts have upheld a defense to a Family and Medical Leave Act (“FMLA”) retaliation claim called the “honest belief” defense. The “honest belief” defense means that “where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave, that is a legitimate, nondiscriminatory justification for the discharge.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 152 (3d Cir. 2017). The “honest belief” defense, if proven, is a total defense to a retaliation claim, even if it later turns out that the employer was wrong and the employee did not in fact misuse the FMLA leave.

The Third Circuit recently issued a decision dealing with the “honest belief” defense. In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3d Cir. 2017), the Third Circuit upheld the trial court’s summary judgment in favor of the employer, Mondelez Global, LLC, on the grounds that the company had an “honest belief” that the employee had violated company policy with regard to taking FMLA leave.

Plaintiff, Capps, was initially hired in November 1989. He was employed as a “mixer,” which required him to operate a mixing machine that made dough. The Defendant, Mondelez, had a personnel policy that entitled an employee to FMLA leave for a “serious health condition of the employee that makes the employee unable to perform one or more of the essential functions of his/her position” and allowed for the use of intermittent FMLA leave when it was a medical necessity. The policy also required that the employee provide notice of the leave “as soon as practicable.” As part of the process of obtaining FMLA leave for the employee’s own serious health condition, Mondelez required a certification from the employee’s health care provider and noted, “As with all communications with the Company, the submission of false information to the Company regarding the need for FMLA leave, or the fraudulent use of FMLA leave, may result in discipline, up to and including termination.” Mondelez also had a policy entitled “Dishonest Acts on the Part of Employees,” which was considered a “Major Rule.” Violations of “Major Rules” were considered inexcusable offenses that would result in immediate suspension pending an investigation, which could lead to termination. Mondelez’s Dishonest Acts on the Part of Employees policy includes the warning that:

THE COMPANY WILL NOT TOLERATE DISHONESTY ON THE PART OF ITS EMPLOYEES, WHETHER IT BE COMMITTED AGAINST THE COMPANY, ANOTHER EMPLOYEE, ITS CUSTOMERS, OR OTHERS EITHER DURING OR AFTER WORKING HOURS” and that “ANY EMPLOYEE FOUND GUILTY OF A DISHONEST ACT WOULD BE SUBJECT TO DISMISSAL.” (emphasis in original).

Capps’ suffered from a condition in which there is a loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells. He experienced severe pain at times in the pelvic region, thighs and hips, which sometimes lasts for days or weeks at a time. As a result, he requested intermittent time off from work when flare-ups occurred. Capps’ intermittent leave request was approved and stated that he may need one to two days off per month for a duration of up to fourteen days per episode due to incapacity and treatment appointments. On Monday, February 11 and Tuesday, February 12, 2013, Capps took FMLA leave due to leg pain, and he returned to work for a full shift on Wednesday, February 13, 2013. Capps was scheduled to work on Thursday, February 14, 2013, but he called in stating he would be late to work because of leg pain. Later that day, he again called in and stated that he would be taking a full day of FMLA leave since the pain had not subsided. His doctor also signed Capps’ FMLA certification form dated February 14th. That evening, Capps drove to a local pub to get something to eat. According to Capps, at the pub he also drank three beers and three shots of alcohol with his friends, and he spent approximately two and a half to three hours at the pub. Afterwards, despite feeling too intoxicated to drive, Capps attempted to drive home. While driving home he was stopped by the police and was found to have a blood alcohol concentration level of 0.339%. Capps was released from jail the morning of February 15, 2013. He was scheduled to begin his shift at Mondelez at 1 p.m. on February 15, 2013, but called out on FMLA leave due to leg pain.

Capps returned to work on Monday, February 18, 2013. He did not report his arrest to anyone at Mondelez; nor was he required to under Mondelez’s policies. In the meantime, Capps was recertified and approved for additional intermittent FMLA leave from July 31, 2013 through January 30, 2014. Capps was eventually convicted of a DUI and sentenced to 72 hours in jail. In early 2014, a Human Resources Manager at Mondelez became aware of Capps’ DUI conviction and sentence by finding in his company mailbox a newspaper article reporting the conviction. Upon reviewing the criminal court docket related to Capps’ conviction, human resources representatives noticed that Capps’ arrest date and “court dates” appeared to coincide with days on which Capps had taken FMLA leave. Capps was eventually terminated for what the company believed was Capps’ violation of the Dishonest Acts on the Part of Employees policy.

Capps subsequently filed a lawsuit alleging retaliation and interference in violation of the FMLA. Capps was able to provide evidence that he had in fact properly used his intermittent FMLA leave and that there was no dishonesty on Capps’ part. At the conclusion of the discovery process, Mondelez filed for summary judgment claiming that it had demonstrated a legitimate, nondiscriminatory justification for discharging Capps, namely that they thought they had evidence that Capps’ had lied about the use of his intermittent FMLA. The district court granted Mondelez’s motion for summary judgment and the Third Circuit affirmed. The Third Circuit explained that FMLA retaliation claims require proof that the employer had an “intent” to retaliate against the employee for use of FMLA. The Court clarified that where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave (as happened here), that is a legitimate, nondiscriminatory justification for the discharge (even when that belief turns out to be wrong). Mondelez was able to show that Capps was continuously provided with intermittent FMLA and was re-certified for FMLA leave approximately every six months from 2002 through early 2014. It was not until human resources representatives received the newspaper article in 2014 alerting Mondelez to Capps’ DUI arrest and conviction, that an investigation began into Capps’ attendance record to determine if any of his FMLA leave coincided with the dates related to his arrest and conviction (and it was undisputed in the records that it appeared as if some of the dates on the court docket coincided with his intermittent FMLA use).

Therefore, an honest belief that an employee is misusing FMLA leave can be a valid defense to a FMLA retaliation claim. However, the employer must be cautioned that this defense requires evidence to back up the honest belief and the employer must be cautioned not to act in any way that will be seen as interfering with the employee’s FMLA leave in an attempt to gather evidence to support the honest belief defense. If an employer does believe that an employee is misusing FMLA leave, it is a good idea to get your company’s labor and employment attorney involved to make sure that the employer complies with all state and federal laws and does not inadvertently violate an employee’s rights under state and/or federal law.

The short answer is “NO.”  A recent Federal District Court decision suggests that employers are cautioned to “pay attention to” and ask questions about any mention by an employee of a serious health condition before they make the decision to take any negative employment action (firing, demoting, suspending, etc.)

The Result:

A Federal Court in New Jersey (Van Allen v. Print Art, Inc., 2017 U.S. Dist. LEXIS 55019 (D.N.J. April 11, 2017)) refused to rule that the employer did not have sufficient notice of a potential serious health condition protected under the Family and Medical Leave Act and instead, sent the notice issue to a jury to decide even though the employee’s complaints were vague and inconsistent.

Why is this Something for Employers to “Pay Attention To?”

This is important because (a) like many employers, Print Art, Inc. had a clear discipline policy for excessive unscheduled absences; (b) Mr. Van Allen’s communications to the employer were inconsistent and unclear (e.g., “My son has off…for the MLK holiday…I’m going to take the day….I had a family emergency last night and got no sleep…I broke out in rashes all over my arms, eyes, neck….[which] caused me to lose sleep”);(c) the employer, under its excessive absenteeism  policy, terminated Mr. Van Allen after it had notice of these issues; and (d) while the Court agreed that Van Allen’s complaints were vague, it refused to rule in the employer’s favor as a matter of law.

What’s an Employer to Do When the Employee’s Condition is Unclear?

 The short answer: obtain more information before taking action.  In Van Allen, the Court cited the FMLA and held that while employees must provide “sufficient information for an employer to reasonably determine whether the FMLA may apply…..this is not a stringent standard.”

Rather, “where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee…to ascertain whether leave is potentially FMLA qualifying.” As a result, even though the Court indicated that Van Allen’s complaints were vague and sometimes not suggestive of any request for FMLA leave, the Court concluded that the interpretation of “all of the communications” (including those about the rash) might lead a reasonable factfinder to conclude that the employer had sufficient notice of an FMLA-qualifying condition.

What’s the “Take-a-Way” Here?

When an employee makes any complaint about a health condition which might result in prolonged or intermittent absences from work or continuing medical treatment, engage in a dialogue with the employee to attempt to determine whether their absences may be considered to be protected leave under the Family and Medical Leave Act. Once that information is gathered, take appropriate action (medical certifications, etc.) to either grant or deny leave under the FMLA. And, as always, and because each and every employee’s situation is unique, if you have any questions about how to address the issue or whether the employee might be requesting or entitled to an accommodation under the Americans with Disabilities Act, consult your labor and employment attorney as soon as possible.

The Family Medical Leave Act (“FMLA”) is one of the laws about which employment lawyers get the most questions.  The FMLA can be complicated to apply to factual situations and employers are justifiably concerned that if they take disciplinary action against an employee after he/she returns from FMLA leave, even if the discipline is based upon clearly documented performance problems, that the employee will bring suit claiming FMLA retaliation.  In a recent case, the United States District Court for the District of Eastern Pennsylvania analyzed whether or not an employee made a valid retaliation claim when she alleged that upon her return to work from FMLA leave, co-workers were discourteous towards her and her employer chose to enforce her resignation, even after she had rescinded it.

Facts of the Case

In Checa v. Drexel University, No. 16-08, 2016 U.S. Dist. LEXIS 83524 (E.D.Pa June 28, 2016), the plaintiff, Debra Checa (“Checa”), was employed by Drexel University College of Medicine (“Drexel”) as a program manager and fellowship coordinator.  In June 2014, Checa took three months of FMLA qualifying leave of absence from Drexel in order to undergo carpel tunnel surgery.  While Checa was on leave, her mother passed away. Checa asked Drexel to extend her leave for a short period of time due to her mother’s passing.  Drexel approved the extended leave.

On the day that Checa returned to work, her co-workers allegedly did not give her a warm welcome and failed to offer condolences for her mother’s passing.  Also, on her first day back, Checa was called into a meeting with two co-workers, Christina Zervoudakes, the employee that had been performing Checa’s work while she was on leave and Kathy Lally, the employee who provided administrative support to Checa’s department, to discuss Checa’s transition back to work.  During the meeting, Ms. Zervoudakes presented Checa with a list of incomplete tasks which Checa had failed to complete before her leave, despite promising to do so.  Moreover, during the meeting, neither Ms. Zervoudakes nor Ms. Lally offered condolences to Checa regarding her mother’s passing. Checa became upset and told Ms. Zervoudakes and Ms. Lally that she was quitting.  Checa then returned to her office and called her supervisor and advised her supervisor that she quit. Later the same day, Checa emailed her supervisor to confirm that she had quit.  The next morning, Checa met with her supervisor and attempted to rescind her resignation.  Drexel did not allow Checa to rescind her resignation.  Thereafter, Checa brought suit in Federal Court against Drexel claiming FMLA retaliation/constructive discharge. Drexel filed for summary judgment.

In order to prevail on a FMLA retaliation claim, the plaintiff must prove that she 1) invoked her right to FMLA qualifying leave 2) she suffered an adverse employment action and 3) the adverse action was causally related to her invocation of rights.  The Court found in this case that Checa had not established a prima facie case of retaliation because she could not show that she suffered an adverse employment action.

Analysis

The Court held that the meeting between Checa and her co-workers was not an adverse employment action because it did not alter her terms or conditions of employment.  Moreover, attending the meeting did not significantly impact Checa’s ability to work or advance her career.  Checa’s co-workers, Ms. Zervoudakes and Ms. Lally, were providing Checa with performance feedback at the meeting related to Checa’s transition back to work.  This meeting was perfectly acceptable and lawful.  The Court also held that Ms. Zervoudakes and Ms. Lally’s failure to exchange pleasantries with Checa was not an adverse employment action under the law.

In regards to Checa’s constructive discharge claim, although the meeting upset Checa, the Court held that a reasonable employee in her position would not have found one meeting so intolerable that she had to resign.  This is supported by the fact that the day after the meeting, Checa attempted to rescind her resignation.

The Court also analyzed Drexel’s refusal to allow Checa to rescind her resignation and found that this refusal was not an adverse employment action. Checa’s resignation was completely voluntary and Drexel’s decision not to allow Checa to rescind her resignation did not alter her privileges of employment, deprive her of employment opportunities, or adversely affect her status as an employee because she had already resigned. Checa’s resignation was unprofessional and validated Drexel’s decision not to let her return to work.

Drexel’s motion for summary judgment was granted and Checa’s case was dismissed.

What does this mean for employers?

This case clarifies the meaning of “adverse employment” action as it relates to a retaliation case.  Employers have the right to hold meetings upon an employee’s return to work to discuss performance issues from before the employee left for leave.  Moreover, if co-workers are discourteous to an employee when she returns from leave, this does not automatically amount to retaliation or constructive discharge.  This case also clarifies that if an employee resigns from employment and then attempts to rescind that resignation, it is lawful for the employer to enforce the resignation.  If the resignation was unprofessional and unwarranted in the first place, employers are not required to allow employees to return to work.