Nobody Likes a Liar

By Kathleen J. Jennings (kjj@wimlaw.com)

The FMLA is one of those employment statutes that can give companies all sorts of headaches, and one of the biggest headaches can come from managing intermittent FMLA leave. So the termination of an employee in Alabama who got caught abusing intermittent FMLA (for migraine headaches) was probably satisfying on some level to his former employer. (Prichard v. Hyundai Motor Mfg. of Ala., LLC , M.D. Ala., No. 2:18-cv-00556, 10/7/19).

Tommy Prichard worked for Hyundai Motors in Montgomery, Alabama. Prichard was diagnosed with migraine headaches, and by 2013, he was being treated by a physician for his migraines. When Prichard had a migraine, he was unable to work and became bedbound. As a result, Prichard sought intermittent FMLA leave in 2013. Prichard was approved for intermittent FMLA leave and was entitled to take such leave as long as he did it honestly and with integrity and gave proper notification of his leave in accordance with Hyundai’s policies. Prichard renewed his FMLA certification every six months as required, and though the exact wording in the certifications varied slightly, Prichard’s physician generally certified that “[o]n the days [Prichard’s] Migraine HA’s flare [sic] he will be unable to work. He is bed bound unable to function.”

Then Hyundai noticed a pattern in which Prichard often took FMLA leave on Fridays before non-production days. So Hyundai decided to hire a private investigator to investigate and surveil Prichard’s use of FMLA leave. The private investigator observed that Pritchard left his home and stayed out most of the day on a day that he had called out because he had a migraine. (Remember—the migraines made him bed bound and unable to function). When confronted with the evidence, Pritchard became defensive and basically told his employer that it was none of their business what he was doing that day. Not surprisingly, Pritchard was terminated.

Pritchard sued his employer and alleged that he has been terminated in retaliation for using FMLA leave. The U.S. District Court for the Middle District of Alabama granted summary judgment to the employer. Why? Because the employer articulated a legitimate, non-retaliatory reason for Pritchard’s termination: Prichard was terminated because Hyundai had a good faith belief that Prichard misused FMLA leave (based on the pattern of missed Fridays and the private investigator’s report), and Pritchard was unable to show that this reason was a pretext for discrimination.

The lesson for employers is this: if you have a good faith belief that an employee is abusing intermittent FMLA (or any other policy or benefit), you can conduct a necessary investigation to determine whether there is, in fact, abuse. Indeed, the Pritchard decision, the Court noted that “Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave.” However, employers need to be consistent in how and why they conduct such investigations. Furthermore, the use of a qualified and competent third party to conduct the investigation can provide compelling evidence of the misconduct, if discovered.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 


 

Supervisor’s Big Mouth Results in Unnecessary Litigation

By Kathleen Jennings (kjj@wimlaw.com)

A recent case out of the First Circuit Court of Appeals is an excellent example of the old adage, “If you can’t say something nice, don’t say anything at all.” In Chase v. USPS, No. 16-1351, 1st Cir., 12/14/16, a postal worker sued the U.S. Postal Service under the Family and Medical Leave Act, alleging that he had been terminated in retaliation for taking FMLA leave after he was injured in a car accident. As evidence in support of his case, the worked claimed that his supervisor mocked him on several occasions, including publicly referring to him as an “injury fraud specialist.” The supervisor also repeatedly announced that he’d like “the carrier on Route 92 [Chase] who is faking an injury” to come to his office.

Why was the worker terminated? Because he was charged with cocaine possession during his leave period. Seems like a pretty solid reason to terminate an employee.

The First Circuit Court of Appeals found that the worker could not establish a case of FMLA retaliation because the supervisor–who made the decision to terminate his employment–did not know the worker was on FMLA leave. The supervisor’s comments about the worker’s faking of injuries were related to workers’ compensation, and not FMLA, and therefore, there was no evidence that the supervisor had the requisite retaliatory intent under the FMLA.

The moral of the story: it is not a good company practice to allow supervisors or managers to mock employees. Had this supervisor kept his opinions about the worker’s injuries to himself, it is doubtful that the worker would have has the desire or ability to file a case at all. As it was, the employer spent time and money defending this case all the way up to the Circuit Court of Appeals level.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

 

©2016 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

LANDMINES IN MEDICAL RELATED LEAVE: HOW TO DEAL WITH AN EMPLOYEE WHO HAS EXHAUSTED FMLA LEAVE BUT CANNOT RETURN TO WORK FOR MEDICAL REASONS

By Rhonda L. Klein (rlk@wimlaw.com)

Employers mistakenly believe they may terminate an employee with a medical condition who has used 12 weeks of Family and Medical Leave (FMLA) leave, or the period allowed by a company no-fault leave policy providing for the separation of an employee after a specified period of time. In fact, employers often painfully learn they may not always do so. In addition to the FMLA, the Americans with Disabilities Act Amendments Act (ADAAA) also protects employees with medical issues preventing them from working, and this protection may include more leave than provided for under the FMLA and/or modification of a no-fault leave policy.

The ADAAA covers employers who employ 15 or more people in at least 20 calendar weeks in the year in which the challenged employment action takes place, or who did so in the prior year. In other words, all employers who are subject to the FMLA, plus many more, are subject to the ADAAA. Although most employers recognize that the ADAAA requires employers to provide reasonable accommodation to disabled employees who need such an accommodation in order to achieve an equal employment opportunity, we find that employers do not always recognize that a leave of absence, including unpaid leave in excess of the 12 week FMLA period and/or company policy might be a reasonable accommodation.

As with many issues arising under the ADAAA, the meaning of “reasonable accommodation” is unclear and depends on the facts and circumstances in the individual case. The EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship expressly states that leave in excess of that which might otherwise be available may be a “reasonable accommodation” and that application of a no-fault leave policy to a person with a disability may violate the ADAAA, unless (1) there is another reasonable accommodation that would enable the employee to perform the essential functions of his or her position; or, (2) doing so would impose an “undue hardship” on the employer.

Of course, determining what an “undue hardship” is may often be difficult, since it must be determined with consideration of the specific facts and circumstances of the individual case. In general, however, employers should remember that any burden is not sufficient to show an “undue burden.” Rather, an “undue burden” is limited to those specific accommodations that would impose a “significant difficulty or expense” on the employer. In determining whether any accommodation, including, but not limited to leave would pose and undue burden, employers are instructed to consider:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect providing the accommodation would have on the expenses and resources of the facility;
  • if the facility at which the employee works is part of a larger entity, the overall financial resources, size, number of employees, and type and location of the entities’ facilities;
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
  • the impact of the accommodation on the operation of the facility[1].

In addition, there are other considerations which should be considered when the requested accommodation is leave in addition to that available under the FMLA and company policy. By way of example only, employers should consider how long the employee and their doctor believe the employee will need to be on leave and how certain they are that the employee will be able to return at the end of that period. If it is very uncertain whether the employee may ever be able to return to work, it may be acceptable to terminate the employee at the end of FMLA or the period of leave allowed by an internal company policy. And, although it is not a rule, but just a consideration, courts have been reluctant to require employers to hold jobs open for more than six months, especially if it is uncertain whether the employee will be able to return at that time. Regardless of whether an employee is on leave protected by the FMLA or company provided leave, employers can require the employee to request an extension of the approved leave on or before its expiration. If an employee does not do so, the company can apply its regular attendance/absence policy unless there was an acceptable reason for the employee not doing so, e.g., they were incapable of doing so due to a disability.

So what is an employer to do when an employee has exhausted FMLA leave and/or a company leave policy and still cannot return? First and foremost, remember that the 12 week FMLA period only means that the employee is not entitled to additional leave under that law, and that the company policy is trumped by the ADAAA. Second, ask the employee to provide information, including from their health care provider, as to the expected return to work date and the certainty that the employee will be able to return to work at that time. Third, think about the impact on finances and operations of allowing the employee to take leave for the estimated period of time. Fourth, because this really can be a minefield, it is recommended that you get legal advice before terminating the employee.

 

[1] See 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997).

 

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