FMLA

Alisha Regan worked for Faurecia Automotive Seating, Inc., as a prototype seat builder.  At the time she began with the company, she lived 24 miles from the plant.  She and her husband then moved to a new home 79 miles from the plant.  Her commute might take two hours or longer.

Regan had been diagnosed for many years with narcolepsy.  Her doctor treated her condition with Ritalin and Provigil.  She would also nap regularly during her lunch hour.  Her narcolepsy was therefore fairly well controlled.

In 2008 the company changed the work schedule in Regan’s department because materials needed for work were not available at 6:00 a.m.  The shift was therefore adjusted from 6:00 a.m. to 3:00 p.m. to 7:00 a.m. to 4:00 p.m.  Regan met with her supervisor and advised that her narcolepsy would make it harder to commute to work as she would now have to face more traffic and she would tire more quickly. She therefore requested that she be permitted to continue to work from 6:00 a.m. to 3:00 p.m.  Her supervisor advised her that she would have to take leave under the FMLA.

Regan got a note from her physician who advised that it would be in plaintiff’s medical interest to start work earlier at 6:00 a.m. The parties disputed whether plaintiff actually provided the note to the company. The company provided Regan with FMLA paperwork, which she did not complete.  Instead, Regan resigned on September 29, 2008 stating that the new work hours would have tremendous health consequences for her.  She later sued, arguing that the company’s refusal to alter her schedule violated the ADA.

The Court commented that plaintiff never offered solid proof that her proposed schedule change back to 6:00 a.m. would result in less traffic and a shorter commute.  Aside from this issue, the Court said that other federal courts have consistently held that the ADA does not require an employer to accommodate an employee’s commute.  Courts have held that eliminating barriers in the workplace is required, but not barriers outside the workplace.

The Court held, “Under the facts present here, her proposal of a modified work schedule for purposes of commuting during hours with allegedly lighter traffic is not a reasonable accommodation.”

This case can be found at Regan v. Faurecia Automotive Seating, Inc., 2012 U.S. App. LEXIS 9470 (6^th Cir. 2012).  The case reflects the view that commuting issues are largely within the employee’s control.  Requests for commuting changes are not considered job restructuring or workplace modifications as defined by the ADA.

Plaintiff worked as a supervisor for Comcast’s Retention Department.  She worked Monday through Friday. In July 2010 she requested time off on Tuesdays and Thursdays to take care of her child, who suffered from asthma.  The request was initially denied, so plaintiff used flex time or vacation time on Tuesdays and Thursdays until she ran out of that bank of time in September.

On September 28, 2010, plaintiff met with Comcast’s Senior Director of Human Resources to request FMLA leave to care for her daughter.  She also said that she was attending classes on Tuesdays and Thursdays, but she did not specifically state that she would be using FMLA leave to attend those classes.

The FMLA request was approved for leave two times per week to care for her child’s serious health condition for the period between September 1, 2010 and August 31, 2011.

On November 8, 2010, plaintiff’s supervisor sent an internal email stating that coworkers were “getting really upset at the fact that they know of plaintiff’s pattern of calling off on Tuesday and Thursday.” The Human Resources Department decided to investigate plaintiff’s use of FMLA leave and retained an outside surveillance company to monitor plaintiff’s internet activity and conduct surveillance on her home.

Comcast held a fact finding meeting with plaintiff on January 25, 2011.  Plaintiff stated that she sometimes went to the library to study or ran personal errands on FMLA leave days.  She also admitted that she would stay home to rest if she had been up the night before caring for her daughter.  The company terminated plaintiff’s employment.  Later on during discovery it found out that plaintiff had attended classes at one of two colleges –Roosevelt University or Saint Xavier University during work hours while on FMLA leave.

Plaintiff sued and alleged that the company interfered with her use of FMLA leave.  She argued that even if she did conduct personal business during FMLA leave, she also spent some part of every FMLA leave day caring for her daughter.  The Court held that an employer is under no obligation to reinstate an employee who misuses disability leave.  The Court further noted that “[p]laintiff’s FMLA leave allowed her to use it only for caring for her daughter, not for recovering from caring for her daughter, or for conducting personal business after caring for her daughter.”

The Court added, “[A]ccepting plaintiff’s position regarding partial days would lead to an absurd result; if she had spent one minute of the day caring for her daughter, according to her theory of the FMLA, she was entitled to take a full day off.” While plaintiff may have fully intended to use FMLA leave to care for her daughter, the facts were that she actually did many other personal things unrelated to her leave.

This case provides some helpful news for employers in dealing with the FMLA.  As employers know only too well, the FMLA can be finessed by employees, and it can be very hard to make sure that the true purpose of the FMLA leave is actually realized.  Few employers would go to the lengths of hiring an outside investigator, but in this case the aggressive approach by Comcast paid dividends.  This case can be found at Sledge v. Comcast ABB Management, LLC, 2012 U.S. Dist. LEXIS 85832 (E.D.Ill. 2012).

A recent case in the Third Circuit (including New   Jersey) has addressed individual liability of supervisors of public agencies.  In Haybarger v. Lawrence County Adult Probation and Parole, 667 F.3d 408 (3d. Cir. 2012), the plaintiff, Debra Haybarger, worked as an office manager for the Lawrence County Probation and Parole Agency.  Haybarger alleged that her protected absences from work under the FMLA were held against her and lead to her termination.

Haybarger had Type II diabetes, heart disease, and kidney problems, which led to frequent medical appointments and some lost time from work.  She claimed that her supervisor, Mancino, wrote in his annual performance evaluations that she needed “to improve her overall health and cut down on the days she misses due to illness.” She also claimed he asked her why she breathed heavily and needed to see a doctor so often.

On March 23, 2004, Mancino placed Haybarger on a six-month probationary period which required weekly progress assessments.  He advised Haybarger, who had been with the Agency since 1988, that she demonstrated a “lack of leadership,” and “no clear understanding of the subordinate positions.”  Mancino consulted with his supervisor before sending out the discipline letter.

About six months later, Mancino informed his supervisor and Judge Motto that Haybarger’s job performance had not improved.  Mancino said he did not have authority to terminate Haybarger but he advised Judge Motto to dismiss her.  Mancino, his supervisor, and Judge Motto met with Haybarger on October 4, 2004, and advised her of her termination.

Among her various claims, Haybarger alleged that Mancino should be personally liable to her under the FMLA.  The District Court held that Mancino did not have sufficient control to fire plaintiff and was therefore not an employer.  It granted summary judgment to Mancino and dismissed plaintiff’s case against him.  The Third Circuit disagreed.  First, it said, “. . . we discern no reason to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned.”

The Court went on to note that the Sixth and Eleventh Circuit Courts do not permit individual liability against supervisors at public agencies.  However, other Circuits do allow individual liability, and the Third Circuit agreed with the reasoning of the Fifth Circuit.  “Finally, we agree with the Fifth Circuit’s reasoning that the FMLA’s similarity to the FLSA (Fair Labor Standards Act)  indicates that Congress intended for courts to treat the FMLA the same as the FLSA, rather than treating only specific provisions alike. . . . Because the FLSA explicitly provides that an employer includes ‘any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency’ we agree that the FMLA similarly permits individual liability against supervisors at public agencies.”

The next issue the Court considered was whether Mancino had sufficient authority over plaintiff to be considered her supervisor.  The Court said that Mancino admitted that he advised Judge Motto to terminate Haybarger and was present at the termination meeting.  He also wrote the termination letter.  Further, the Court said that Mancino exercised significant control over the conditions of her employment because he monitored her work and performed annual reviews as well as disciplining her.  Therefore, the Court held that Mancino was her supervisor for purposes of individual liability under the FMLA. The Court vacated the summary judgment order and allowed Haybarger to proceed with her case.

This case underscores the critical need for training of supervisors on FMLA issues in both public and private employers.  It is certainly not widely known among supervisors that there is potential for individual liability under the FMLA.  Better education on the FMLA promotes FMLA compliance and protects supervisors and employers from potentially significant law suits.

Someone who is on FMLA is still subject to other leave policies like call-in policies and paid sick leave policies prohibiting distant travel

The case of Denise Pellegrino v. Communications Workers of America, AFL-CIO, 2012 U.S. App. Lexis 7902 (3d. Circuit 2012) offers important guidance for employers who struggle to deal with the FMLA in the context of a paid sick leave policy. (more…)

The court reviewed the amended FMLA regulations dealing with prejudice for failing to designate FMLA time promptly.

Deborah Myers worked as a dialysis nurse at Kettering Medical Center in Ohio (KMC). She was injured during the course of her employment on August 15, 2009. She received temporary total disability benefits under Ohio’s workers’ compensation system. Her injury qualified as a serious health condition under the FMLA but her employer failed to promptly notify her that her absence was designated as FMLA leave. (more…)

Carl Thom worked for American Standard as a molder for a period of 36 years. He had a non-work-related shoulder injury which required surgery, and he sought FMLA leave from April 27, 2005 to June 27, 2005. The company granted the FMLA leave request in writing. As it turned out, plaintiff’s recovery period was accelerated and his surgeon authorized a return-to-work date for light duty on May 31, 2005 with a full-duty projected date of June 13, 2005. (more…)

Employers need to consider the risks of terminating an employee who has asked for FMLA and would soon become eligible

Kathryn Pereda brought a suit for interference with her FMLA rights against her employer, Brookdale Senior Living Communities, Inc. in Florida. The problem from a legal point of view with her law suit is that she did not have the necessary 1,250 hours and one year of employment for eligibility. She began with the company on October 5, 2008 and was terminated 11 months later. She advised her employer in June of 2009 that she was pregnant and would be requesting FMLA on or about November 30, 2009. She was terminated in September 2009, not having worked one full year at that time and not having 1,250 hours at that time. (more…)

The heart of the FMLA is job protection for employees during a period of covered leave. Employers are required under the FMLA regulations to designate leave as FMLA-qualifying based on information received from an employee. The employee need not ever mention the FMLA nor ask for it specifically. “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee as provided in § 825.300 (d).” 29 C.F.R. § 825.300(a). (more…)

What does the phrase mean “to care for” someone with a serious health condition and can an 18-year-old person be considered incapable of self-care for a temporary period of time under the FMLA? These issues as well as the impact of the ADAAA on the FMLA are covered in an important decision entitled Patton v. Ecardio Diagnostics LLC, 793 F.Supp. 2d 964 (S.D. Texas, June 9, 2011). (more…)

Erik Tillman worked as a Communications Specialist for Ohio Bell Telephone. His work required him to fill customer orders for phone and internet services and do maintenance work, including lifting up to 100 pounds and climbing ladders. He was frequently required to work nights and weekends due to his low seniority within the union. He took FMLA leave several times for his back condition and for depression. (more…)