What's New with Unions, Non-Competes and FMLA?

 I’m running a bit behind in my blogging, so I will cover more ground and be a bit more abbreviated than usual. The Supreme Court held that unions can be held liable for intentionally damaging employer’s property during a strike under state law because such claims are not pre-empted by the NLRA.  The NLRB’s General Counsel has officially declared war on most non-compete agreements, although employees can be prohibited from accepting an ownership or management interest in a competitor.   The DOL also explained how to calculate FMLA leave during a holiday week and when the employee’s doctor says that they cannot work more than 8 hours/day. 

The Supreme Court ruled that an employer’s intentional tort claims against a union were not preempted by the National Labor Relations Act when the union started a strike after the employer had filled its cement trucks, which caused the employer to lose all of the cement and risk losing many of the trucks if they were not immediately unloaded in a safe location before the cement hardened in them.  Glacier Northwest, Inc. v. Int’l Bhd of Teamsters, Local 174, No. 21-1449 (U.S. 6/1/23).  The state supreme court had held that the damage was incidental to the lawful strike and, therefore that the tort claim was preempted.  However, the Court’s 8-1 majority found that the NRLB had long required employees to take “reasonable precautions” to protect an employer’s property from foreseeable, aggravated and imminent danger.  Because the union had failed to take “reasonable precautions,” and actually sought the obtained result, its strike activity was not even arguably protected and could not pre-empt state tort laws.  By reporting for duty and prompting the employer create a perishable product, they created an imminent risk of harm to the trucks and destroyed the concrete by then walking off the job after it was poured.

 . . . the Union’s decision to initiate the strike during the workday and failure to give [the employer] specific notice do not themselves render its conduct unprotected. Still, they are relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable. In this instance, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into [the employer’s] delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to [the employer’s] property.

                . . .

[The employer] alleges that the drivers’ conduct created an emergency in which it had to devise a way to offload concrete “in a timely manner to avoid costly damage to [its] mixer trucks.” App. 72. The Union’s actions not only resulted in the destruction of all the concrete [the employer] had prepared that day; they also posed a risk of foreseeable, aggravated, and imminent harm to [its] trucks. Because the Union took affirmative steps to endanger [the employer’s] property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.

A day earlier, the DOL issued a rare opinion letter FMLA2023-2-A about the FMLA.  In it, it explained that when holidays fall during a week in which the employee takes FMLA leave, whether the holiday counts towards the FMLA 12 week entitlement depends on whether the employee took off the full week (meaning the holiday counts) or whether the employee took off less than a full week (meaning the holiday would not count towards the 12 weeks).  The reason being that if the employee typically works 5 days a week and only took one day off for FMLA during a holiday week, the employer may only count 20% of the week against the 12-week entitlement and not 25% (as though it were a four-day work week). 

When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. 29 C.F.R. § 825.200(h). Thus, for example, an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Thursday would use one week of leave and not 4/5 of a week. However, when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. Id. The Department has taken a consistent approach to the treatment of holidays since the first publication of its FMLA regulations in 1995. See 60 Fed. Reg. at 2200; see also Final Rule: The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934, 67972-73 (Nov. 17, 2008).

Also on May 30, the NLRB’s General Counsel issued an enforcement Memorandum indicating that she intends to litigate the enforceability  of most non-management non-compete agreements on the grounds that they prevent employees from quitting their jobs and finding new ones and on the belief that most are overly broad.  In other words, she finds most non-compete agreements issued to non-management employees to violated the National Labor Relations Act whether issued during, before or after (in a severance agreement) employment and regardless of the motivation (i.e., confidential information or training investments).  She had conceded that it would not violate the NLRA to prevent employees from engaging in an ownership, management or independent contractor relationship with a competitor following employment. 

Earlier this year, the DOL also issued an FMLA opinion letter No. FMLA2023-1-A reminding employers that employees can essentially take unlimited FMLA leave.  In the employer’s request, the employee’s physician instructed him to not work more than 8 hours/day, even though the employer frequently needs employees to work more than 8 hours/day and operates a 24-hour-day business.  The DOL indicated that the employee remains entitled to 12-weeks of FMLA leave, not just an ADA reasonable accommodation.  If the employee typically works 50 hours/week, then employee would be entitled to 600 hours of leave, not just 480 like a typical 40-hour/week employee. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects EFMLEA Claim Where Employer's Final Offer of Reinstatement Was Not Shown to Be a Violation and Revocation of Flexible Class Schedule Affected More Than Just the Plaintiff.

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims by a medical assistant that it interfered with her EFMLEA leave by refusing to reinstate her to her former position or on the same terms and conditions by changing her job duties during the COVID pandemic and revoking her prior flexible work schedule.  Clement v. The Surgical Clinic, PLLC, No. 22-5801 (6^th Cir. 4-21-23).  The Court found that reassignment claim lacked merit because, after she objected to the change in job duties, she was offered a suitable transfer which she had accepted and which was willing to accommodate her job schedule.   While the revocation of her flexible schedule (to attend classes) constituted a prima facie violation of the statute, the employer was able to show that it revoked all prior authorizations of flexible schedules to attend classes – regardless of whether the employee had utilized EFMLEA or FMLA – because of the emergency situation created by the pandemic.  This was not only a legitimate and non-discriminatory reason, it applied regardless of whether the employee took EFMLEA or not.  Employees taking EFMLEA are not entitled to greater rights than employees who do not take such leave. 

According to the Court’s opinion, the plaintiff was hired for the clinic’s downtown (and busiest) clinic in 2018 where she would assist one physician and sometimes engage in patient triage.  She was allowed to shift her schedule by 30 minutes each day because of childcare responsibilities and to start two hours later when she had class (which required the employer to find replacement coverage for those hours).  When the pandemic began, the plaintiff utilized two months of leave under the Emergency Family and Medical Expansion Act.  When she sought to return to work, she was informed that she would be assigned to engage in triage on a full-time basis and that she could no longer report to work later than the rest of the staff.  When she objected, the employer found that one of its other offices was willing to give her a non-triage position and permit her to start work 30 minutes later each day.  However, around the same time, the employer notified all of its clinics that employees could no longer miss work in order to attend class because of the staffing shortage caused by the pandemic.  The plaintiff and at least one of the employee resigned because of the new policy of no longer accommodating class schedules and the plaintiff filed suit, claiming that these changes violated her rights under the EMFLEA.

The EFMLEA entitles qualified employees to reinstatement to the same position they held prior to taking leave—or, at least, to an “equivalent position.”  . . . An equivalent position is “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status” and which “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Among other things, employees are generally entitled to work the same or an equivalent work schedule upon their return from leave. Id. § 825.215(e)(2). That said, “[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.” Id. § 825.215(f).

The Court refused to find any interference with the plaintiff’s EFMLEA right to reinstatement based on its initial condition of assigning her to full-time triage work and revoking her authorization to start and end work 30 minutes after the rest of the staff because it was not the employer’s final offer.

But we are aware of no authority suggesting that an employer’s offer that it later revises is binding for purposes of establishing interference. On the other hand, it is well-established that plaintiffs must prove they suffered harm from an employer’s interference with their statutory rights. . . . To assess harm, we must evaluate the employer’s action that prompted the employment outcome, and it would seem that early offers would be superseded by the final offer on which the plaintiff was required to act. Notably, we have also consistently held that “the FMLA is not a strict-liability statute.” . . . approach tends toward strict liability in that it would deprive even the most well-meaning employers the opportunity to course-correct from potential EFMLEA violations—for example, by returning to the table with their employees to work out acceptable terms of employment.

 . .. To be considered equivalent, an employee’s new role must be identical in pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). There is no dispute that [her] compensation and benefits would have gone unchanged following a transfer to The Vein Centre. What’s more, [she] would have continued working as a medical assistant at The Vein Centre, which is located a short distance away from TSC. And although she argues that TSC’s first reinstatement offer entailed substantially altered job duties (in that TSC would have assigned her to triage full-time, for example), she makes no effort to establish how or why TSC’s final offer suffered from the same shortcomings. Nor has she developed any argument on appeal that working at The Vein Centre, in and of itself, would deprive her of an equivalent position. Thus, even viewing the facts in the light most favorable to Clement, nothing suggests that the position at The Vein Centre would have involved anything less than “the same or substantially similar duties and responsibilities” as Clement’s previous role. And TSC agreed to accommodate her preferred 8:00 a.m. start time at The Vein Centre—a fact which Clement concedes. Thus, no reasonable factfinder could determine that her pre- and post-leave positions were inequivalent in this regard.

However, the revocation of her two-hour schedule delays when she previously would have attended class presented a different issue and outcome. 

The district court held that this series of events raised a question of fact as to whether TSC restored Clement to the same or an equivalent position at the company. We agree. 29 C.F.R. § 825.215(e)(2) provides that employees are generally entitled to “the same or an equivalent work schedule” following leave. There is no dispute that TSC did not allow Clement to work the same schedule she had before her EFMLEA leave. And TSC’s proposed altered schedule, excluding time away during the workday to attend classes, made it impossible for her to balance her school and work obligations—ultimately leading to her resignation from TSC. We thus cannot say that this schedule change was de minimis as a matter of law. See id. § 825.215(f).

Nonetheless, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

The FMLA relatedly provides that it “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  . . .  Thus, employees who request FMLA or EFMLEA leave “have no greater protection against [their] employment being terminated for reasons not related to [their EFMLEA] request than [they] did before submitting that request.” . . . This means a plaintiff has no actionable interference claim if her employer can show that it would have made the same decision at issue even had the employee not exercised her EFMLEA rights.

The employer had no difficulty proving that it would have the same scheduling decision even if the plaintiff had not taken EFMLA leave:

 . . . employees testified that accommodating [her] school schedule “put a hardship on [it]” even before the pandemic. Then, after the COVID-19 outbreak in March 2020, [its] staff had to balance increased demand at their clinics with staffing shortages. Under these circumstances, [it] concluded it could no longer permit staff to leave the office during working hours for school. It therefore enacted a company-wide policy prohibiting flexible school and work schedules. This pandemic-related change was not specific to [her] and would have occurred regardless of her EFMLEA leave. Therefore, [it] proffered a legitimate justification for its decision.

The plaintiff attempted to prove that the policy change was related only to her reinstatement.  However, when the employer initially revoked her authorization to attend class during work hours, it did so in connection with the pandemic scheduling challenges – the same justification for the company-wide policy.  This was not inconsistent with the employer’s explanation for the policy.  While the pandemic cannot be a magic bullet justification for every employment decision, in this case, even the plaintiff acknowledged the challenges facing the medical profession.    It was also undisputed that the employer’s decisions affected (and motivated the resignations) of individuals besides the plaintiff.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects ADA Claim Based on Self-Diagnosis and Belated Request to Transfer to Avoid Supervisor Even Though Employee Later Discovered Brain Tumor

A unanimous Sixth Circuit yesterday affirmed an employer’s summary judgment on claims brought by an employee terminated for repeated poor attendance which she later blamed on persistent depression and a brain tumor that were not discovered or diagnosed until after her termination.   Hrdlicka v. General Motors LLC, No. 22-1328 (6^th Cir. 2/7/23), reissued (6th Cir. 3-23-23).  The Court found that her time off requests were not specific enough to prevail on disability discrimination, failure to accommodate or denial of FMLA claims and the employer was justified in acting based on the information that it had at the time and was apparently not required to inquire further.   Merely mentioning possible depression is insufficient to put an employer on notice of the ADA because depression is not always a disability and the employer reasonably attributed the issues to a personality conflict.  The Court also found that the employer was not required to engage in the interactive process when her unreasonable request to transfer was plausibly based on her dislike of her job, co-worker and supervisor rather than self-diagnosed depression.   It also found her request to transfer was too little too late when it came after her Final Written Warning, after she had been late two more times and two days before she was ultimately fired.

According to the Court’s opinion, the plaintiff had worked for GM for over 30 years when she was terminated for excessive absenteeism.  She had previously taken a few medical and other leaves of absence, showing that she knew how to request such leaves.   She was transferred to a new department in May 2018, but did not like a co-worker, her new supervisor or the work environment.   She requested by August to be returned to her former department, but her position had been eliminated, she was not qualified for any other positions and someone would have to backfill her current position.   Within a year, she began frequently missing, and being hours late for, work.  She gave a variety of reasons for her attendance, when she explained it at all, including child care issues, traffic, not feeling well, headache, bad cough, family situations, being tired, etc.  The only time she mentioned going to see a doctor was a fabrication.  Her attendance was criticized in her June 2019 performance evaluation and, finally, she was given a final written warning on August 14, 2019 after she had missed the summer intern presentations over which she had primary responsibility.  She was encouraged to utilize a medical leave of absence or seek a reasonable accommodation if necessary and provided with information to contact the EAP.  She was late the next two days and then on August 19 requested against to transfer back to her former department.  To support this request, she mentioned that she was unhappy with her work environment and supervisor and it was disputed whether she also mentioned that she had been suffering from [self-diagnosed] depression.  She was late again the next day and her employment was terminated.    

She immediately appealed her termination and claimed that she had informed HR before her termination that she suffered from depression caused by her supervisor.   In October, she was diagnosed with persistent depressive disorder.  A brain tumor was discovered in November and removed.  The employer was so informed.   Her appeal – which was limited to facts which existed at the time the August termination decision was made – was denied because there was no evidence submitted prior to her termination to substantiate her depression.  She then filed suit, alleging violations of the ADA, FMLA, state law, ERISA,  and Title VII.  The employer was granted summary judgment on all claims and the Court of Appeals affirmed. 

The Court agreed that she could not prevail on a disability discrimination or failure to accommodate claim based on an impairment which was not even diagnosed until after her termination, particularly when she never sought medical help until after she had been fired.  The Court was not influenced by her self-diagnoses:

Although an employee is not required to use the word “disabled” to put his or her employer on notice, the employer still must “know enough information about the employee’s condition to conclude that he is disabled. Relevant information could include, among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-imposed work restrictions.”  . . . “The employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”

[Plaintiff’s] text messages required [her supervisor] to speculate as to the existence of a disability. Many of the text messages reference only generalized ailments, such as [her] “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” Such symptoms are consistent with many short-term, nondisabling ailments, including a common cold. Other text messages make even more general references to “having a tough time” or dealing with “a mental thing.” Although these messages might have given [the supervisor] a general awareness of a health issue, that is not enough. . . . .. At bottom, these text messages were not sufficient to apprise [the supervisor] of a disability, especially when [the plaintiff] herself was unaware of any disability.

The closer question is whether [the plaintiff] put General Motors on notice of a disability when she met with [HR] shortly before she was terminated. In that meeting, [she] told them that she had felt depressed since transitioning to the Design Academy. In explaining her tardiness, however, [she] stated that “it was all related to [her] current work environment created by [her supervisor,] . . . includ[ing] a lack of leadership, direction, a lack of trust within the group, favoritism,” etc. . . .

In sum, [the plaintiff] made only a single, unsubstantiated statement that she was depressed without any corroborating medical evidence and without ever having sought medical help, and she consistently presented the issue as a workplace conflict, not a disability. Although a diagnosis is not necessary for an ADA claim to succeed,  . . .  [she] failed to present any of the “[r]elevant information” that this court has found pertinent to determining if an employer was placed on notice of a disability. . . .

The mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” . . . Second, [she] consistently and specifically attributed both her attendance issues and depression to a dislike of [her supervisor] and the work environment, leaving General Motors to “speculate” as to the existence of a disability as opposed to [her] concern about her interpersonal work conflict.

The Court also concluded that even if she suffered from a disability, the employer had a legitimate reason to terminate her for her repeated poor attendance and prior warnings: “The chronic tardiness and repeated absences, coupled with [her] immediate failure to abide by her Attendance Letter, were clearly legitimate, nondiscriminatory reasons to terminate her.”

The Court also rejected her failure to accommodate claim based on her request to transfer back to her former department days after her Final Written Warning and two days before she was terminated (after she had again been late to work without a valid medical excuse).   She had never linked this request with any purported disability.  Unlike the Sixth Circuit panel just days earlier, it found her request to transfer to avoid her supervisor was unreasonable:

Based on the facts in the record, however, this request was not “reasonable.” A transfer request is not reasonable if it was made to avoid working with certain people. . . . . A court is not in a position to “act as a super-bureau of Human Resources” and determine who should work with whom.

[She] herself conceded during her deposition that, when meeting with [HR], she “complained about [her co-worker] and [her supervisor’s] lack of leadership at this meeting” and that her tardiness was “related to [her] current work environment created by [her supervisor].” In other words, she attributed her attendance issues to the work environment and to her supervisor. She explicitly noted that her depression began once she was transferred to the Design Academy, and that this “precipitated her request for a transfer back to Sculpting.”

These facts compel the conclusion that her transfer request was specifically linked to her distaste for her current work environment. Basically, it was a desire to “force [the defendant] to transfer [her] so that [she] will not be required to work with certain people.” . . .

Even assuming that [she] adequately attributed her request to a disability and not just to a desire to escape the Design Academy, her request was untimely. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’” . . .

Similarly, [her] request came after a long history of attendance issues and a warning that her “job was in jeopardy” if she did not improve. After [she] arrived late for three successive days immediately following the issuance of her Attendance Letter, she was terminated. Her last-minute request for a transfer back to the Sculpting Department was not reasonable under the circumstances.

The Court also rejected her argument that her employer failed to engage in the interactive process:

General Motors did not violate a duty to engage in an interactive process because the duty is an independent violation of the ADA only “if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation.” Id. at 1041. As discussed above, [she] did not request a reasonable accommodation and, therefore, General Motors did not fail to engage in an interactive process.

The Court also rejected her FMLA claim on the ground that she failed to provide sufficient notice of the need for such leave.  Her “general references to her head “really hurting,” feeling “sick,” or having a “fever and other symptoms” are simply generalized descriptions of ailments that do not rise to the level of “serious health conditions” within the meaning of the FMLA.”

The better argument is when [she] more explicitly referenced having “depression” in her meeting with [HR] shortly before she was terminated. But this conversation was not accompanied by any request for FMLA leave despite the fact that [she] was familiar with the process because she herself had already taken FMLA and maternity leave when she had had her two children. Moreover, the possibility of taking FMLA leave was directly stated in her Attendance Letter, which was both read and emailed to [her].

                 . . .

             . . . In sum, [she] made only a single statement that she was depressed, which was not made in the context of requesting time off, but as a justification for her desire to transfer back to the sculpting Department (and to continue working, not stop working as FMLA leave would entail).

The remaining claims were denied based on the employer’s legitimate and non-discriminatory reason to terminate her on account of her poor attendance, after several warnings, based on the information that the employer had at the time of the decision. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

FMLA Bars Retaliation Against Employee for Requesting FMLA Leave Even if Unqualified or Ineligible

On Wednesday, a unanimous Sixth Circuit reversed an employer’s 12(b)(6) judgment on an FMLA retaliation claim where the employee was terminated shortly after requesting an unpaid leave due to her infant son’s health even though she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.  Millman v. Fieger and Fieger, PC¸ No. 21-2685 (6^th Cir. 1/25/23).  The Court ultimately determined that “the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave.”

According to the Court’s opinion, shortly after the commencement of the COVID pandemic on March 13, the employer law firm directed its staff to work from home one day each week.  The plaintiff lawyer’s two-year old son recently been hospitalized with RSV, a respiratory illness, was still using a nebulizer and his day care remained closed.  The plaintiff had five vacation and 3 PTO days left in her time off bank.  The firm owner denied her March 14 request to work from home on March 16 and 17, but HR approved her request to use her PTO.  When her direct supervisor asked if she planned to return on March 19, she indicated that she planned to return, but was concerned that her son’s day care was still closed and he had developed COVID symptoms.  On  Thursday, her son’s condition worsened and she contacted HR and offered to take unpaid leave to avoid returning to the office.  HR did not respond to her offer to take unpaid leave or send her an eligibility notice or request for a medical statement and instead authorized her to work from home for the remainder of the week.  She forwarded the email to her supervisor and worked with him from home for the rest of the day.  At the end of the day, HR sent her a letter signed by the firm’s owner terminating her employment after she reported that her son had a cold and she had not returned to work as promised.  A week later, she requested her personnel file and was sent another letter indicating that her actions showed that she had no intention of returning to work, that she refused to work because her son had a cold and they believed that she had quit.  When she filed suit in August, the court granted the employer’s motion to dismiss on the grounds that she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition.

The Court first concluded that FMLA retaliation claims may be brought both under the interfere, restrain and deny statutory section and the retaliation statutory section, but that the burden of proof for retaliation claims did not change depending on which statutory section was cited.  (The concurring opinion clarified that only the interfere, restrain and deny section should support this type of retaliation claim).   

The plaintiff’s “core claim is that she was fired for inquiring about and making a request to take FMLA leave, which she argues is protected activity under the FMLA.”  For purposes of ruling on a motion to dismiss (when all factual allegations are deemed to be valid), the Court presumed that she had alleged sufficient causation and an adverse action.  The only question was whether she had engaged in a protected activity and that her employer knew she had engaged in a protected activity when there were no factual allegations indicating that she was entitled to or qualified for FMLA leave.

It makes sense that entitlement is a prerequisite to an FMLA retaliation claim in certain circumstances. In the more common circumstance, if an employee actually takes leave without being entitled to the leave, her action is beyond the scope of FMLA protection. Simply put, the FMLA protects leave that is taken only if it falls within the scope of entitlement; taking leave to which the employee was not entitled unambiguously falls outside the FMLA’s protections. . . .

This case presents an entirely different circumstance. [Plaintiff] never actually took leave; she only made a request for leave. . . . the question is whether the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave. . . .

 . . . the steps of the process created by the FMLA—including the first step, i.e., the employee’s initial request for leave—must be protected activity under the Act. FMLA rights and the statute’s purpose would be significantly diminished if employers could fire an employee who simply took the required initial steps to access FMLA leave.

                . . .

Suppose that an employee, intending to exercise her FMLA rights, meets with her employer and asks questions concerning her FMLA rights, then is fired for doing so. Concluding that no FMLA violation could occur if it turns out that the employee is not entitled to leave would render the employee unprotected during the step required to initiate the FMLA’s process. Without protection, employees would be discouraged from taking authorized initial steps—including preparing or formulating a request—to access FMLA benefits. We are not to impose nonsensical readings of a statute “if alternative interpretations consistent with the legislative purpose are available.”

                . . .

                . . . Starting with the regulation implementing § 2615(a), “[t]he FMLA prohibits interference with an employee’s rights under the law, and with . . . inquiries relating to an employee’s rights.”

                . . . .

Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected. In this case, when her son began exhibiting symptoms associated with COVID-19, [Plaintiff] made a request to her employer for unpaid leave—following the first step of the FMLA’s process. The Firm, through Human Resources, then offered, and [she] accepted, a work-from-home arrangement for those two days and never responded to her request. [Her] action was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA.

Although the employer argued that the plaintiff had failed to provide notice that she was exercising her rights under the FMLA, the Court pointed out that the FMLA regulations make clear that employees do not need to use the words, FMLA, to request leave under the FMLA.   Rather, “the employee must provide enough information for the employer to know that the leave she has requested reasonably might fall under the FMLA. In addition, where leave is needed to care for a family member, the employee must so indicate.”

“In any circumstance 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 or the spokesperson to ascertain whether leave is potentially FMLA-qualifying.” 29 C.F.R. § 825.301(a). Once an employer is put on notice that an employee seeks to use her FMLA leave, moreover, “the employer bears the obligation to collect any additional information necessary to make the leave comply with the requirements of the FMLA.”

In addition, the employer was clearly on notice because it initially permitted her to work from home and its subsequent documentation cited her request to not return to the office.

The Firm indicated that it was aware of  [her] request based on its response: it offered an alternative accommodation to work from home for two days. The Firm had notice that [she] sought leave to care for her son who had recently been hospitalized with RSV, suffered continuing symptoms from that condition and, potentially, had contracted COVID-19. This knowledge gave rise to a duty for the Firm to, at minimum, engage in the communication required by the statute. The Firm neither sought to clarify [her] request nor did it attempt to obtain “a certification issued by a healthcare provider of . . . [her] son” to determine whether her request fell outside the scope of the Act. 29 U.S.C. § 2612(a). Instead, the Firm offered a work-from-home arrangement—which [she] accepted—and then terminated her after the first day for failing to “come into work,” indicating that her “child had a minor cold.” The Firm, thus, failed to exhaust any of its obligations in responding to [her] request. On these allegations, [she] provided proper notice to her employer that she sought FMLA leave and was acting pursuant to the FMLA’s prescribed procedures. The Firm was on notice of her protected activity.

Therefore, the dismissal was reversed and the case was remanded to the trial court to proceed with discovery.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects FMLA Interference Claim When Employee Was Fired for Missing Work Due to Isolation Order During 2020 Pandemic

Last month, the Sixth Circuit Court of Appeals affirmed the dismissal of an employee’s FMLA interference claim when she was fired after missing work for three weeks because of an upper respiratory infection during the COVID pandemic after her physician had advised her to stay home for 10 days and the Health Board advised her to self-quarantine because she had been exposed to COVID. Nuttal v. Progressive Parma Care Center LLC, No. 21-4199 (6^th Cir. 7/26/22).   The Court excused the employer’s failure to provide her with new FMLA eligibility or designation notices and concluded that she could not show interference with FMLA leave because she had not given her employer notice that she suffered from a serious health condition that incapacitated her or required continuing care from a physician by simply referring to her physician’s direction or the isolation order.   She had never been incapacitated and did not require continued medical care.  She had already been provided with eligibility notices with prior FMLA requests within the year and her eligibility had not changed.  A designation notice was not required until she provided a medical certification, which was never received.  Because she had already been on notice of her FMLA rights and obligations, she could not show that she had been prejudiced by the lack of a designation notice.  Interestingly, the Court never addresses the Families First Cornavirus Relief Act and how notice of an isolation order could trigger the FMLA.    

According to the Court’s opinion, in March 2020, the plaintiff developed an upper respiratory infection after being exposed to COVID.  Her physician advised her to remain home for 10 days and the Board of Health directed her to remain home until she had been symptom free for 72 hours and 1 week after symptoms first appeared.  She immediately notified her supervisor that she needed time off work.  She advised HR a few days later and was directed to use her accrued vacation and then apply for unemployment.  In early April, she asked her physician to send HR a letter about needing to remain home, but it was apparently never sent.  She continued to keep her employer informed and expressed concern about contracting COVID and her hesitancy to return to work.  On April 17, she was released to return to work and immediately informed her employer, which had already posted her job and told her that she was no longer needed.   

The plaintiff filed suit on the grounds that the employer never provided with her the required FMLA notices and interfered with her FMLA leave.  The trial court found that the plaintiff had not given adequate notice of her intent to take FMLA leave, that the employer provided required notice and she could not show the failure to provide an additional notice interfered with her FMLA leave.

The Sixth Circuit focused exclusively on the regular FMLA regulations and never cited to the Families First Cornavirus Relief Act, which was enacted by March 19, 2020:

A “serious health condition” is an illness that involves “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B). Illnesses like the common cold and the flu, which can be treated with bed rest, fluids, and over-the-counter medication, generally do not qualify as serious health conditions. 29 C.F.R. § 825.113(c)–(d). “Calling in ‘sick’ without providing more information will also not be considered sufficient notice to trigger an employer’s obligations under the Act.” Id. § 825.303(b).

The plaintiff alleged that she had been her employer on notice when she texted her supervisor that she had been directed by her physician to quarantine for two weeks, sent a copy of the Health Board’s isolation order and provided her physician’s contact information in case HR required more information. 

But she told them nothing about the severity of her illness—which in fact did not require continuing treatment by her doctor. See id. § 825.115(a)(1). . . . . . In short, Nuttall gave no indication that she sought time off because she had a serious health condition that incapacitated her. She thus cannot make out a prima facie case that Parma Care Center interfered with her rights under the FMLA.

As for the lack of eligibility notice, she had already been sent two such notices within the prior 12 months and her eligibility had not changed.  “When ‘an employee provides notice of a subsequent need for FMLA leave’ within 12 months ‘due to a different FMLA-qualifying reason, and the employee’s eligibility status has not changed, no additional eligibility notice is required.’ Id. § 825.300(b)(3).”    However, the employer apparently never notified her with 12-month period it was using – meaning that she was entitled to rely on the 12-month period most advantageous to her under 29 C.F.R. § 825.200(e).  Since a new calendar year had started since her last FMLA request, she asserted that a new eligibility notice was required because she would have provided the medical certification form if it had ever been requested.

The Court was unimpressed.  It concluded that the prior FMLA notices had adequately informed her  of her rights and obligations:

[She] has not presented evidence that a FMLA notice in 2020 would have made a difference. Her choice in 2019 to fill out the FMLA paperwork—even though she states she did not ultimately take FMLA leave—is evidence that she knew her FMLA rights and the FMLA process. And without taking FMLA leave in 2019, no 12-month period could start, so the calculation method chosen by Parma Care Center is irrelevant. Simply put, [her] failure to provide evidence that Parma Care Center’s lack of notice in the 2020 calendar year precluded her from completing the same paperwork again for her respiratory illness is fatal to her claim.  Her knowledge of her FMLA eligibility in 2019 precludes the possibility of harm, even if the center had to provide notice.

Because Nuttall cannot prove that Parma Care Center’s alleged lack of notice actually caused her harm, she cannot prove yet another one of the elements needed for a prima facie case of FMLA interference, and her claim fails. We need not address the other elements.

The Court never indicates why the FFCRA did not apply in this case and it seems likely that the employer was a large employer with over 500 employees.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Refuses Employee Claim for Age Discrimination and to Award Attorneys Fees to Prevailing FMLA Plaintiff

This morning, the Sixth Circuit issued a few employment decisions that may be of interest to employers and employees.  In the first case, the Court rejected the plaintiff’s age discrimination claim where she had been fired for insubordination.   Pelcha v. MW Bancorp, Inc.,  No. 20-3511 (6^th Cir. 1-12-21, amended 2-19-21).  The Court reiterated that the Supreme Court has held the ADEA does not permit mixed-motive cases, unlike Title VII.  Further, her evidence of stray remarks by the Bank’s president about an employee who was 40 years older than her were too vague and unrelated to her situation to constitute direct evidence that she had been fired because of her age.    In the second case, the plaintiff physician was denied prevailing party attorney fees in his FMLA claim by the arbitrator because he had failed to educate the arbitrator that the statute prevailed over contrary language in the arbitration clause and because he failed to submit any definitive evidence of the fees he was claiming.

In the first case, the plaintiff teller was fired by her long time banking employer for insubordination for refusing to submit a written request for time off until the day before her day off even though such requests were due a month in advance.  She argued that this was pretext for age discrimination.  The district court granted summary judgment to the employer and she appealed.

The plaintiff attempted to argue that she had proved age discrimination with direct evidence based on a few inflammatory statements that the Bank’s president made about another employee who was 40 years older than the plaintiff and that he wanted to hire younger tellers.  The Court disagreed.  “In reviewing direct evidence, we look for “evidence from the lips of the defendant proclaiming his or her . . . animus.”  . . .Inferences are not permitted.”

“Direct evidence is evidence that proves the existence of a fact without requiring any inferences” to be drawn.  . . . In other words, direct evidence is “smoking gun” evidence that “explains itself.”

                . . .

In determining the materiality of allegedly discriminatory statements, we consider four factors, none of which are dispositive: “(1) whether the statements were made by a decisionmaker . . . ; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination.”

             . . . None of the statements were related to [the plaintiff]’s termination. In fact, they were not made in relation to any termination decision and were about an entirely different employee. Additionally, nothing in the record suggests that the statements were more than isolated remarks. Here, it appears as though these statements were only made once or twice to certain higher-level management employees.

                . . . Hiring younger tellers does not require the termination of older employees.

 . . ., in terms of timing, the comments in question come from late 2015 or early 2016, more than six months before her termination. We have previously suggested that time spans of six or seven months can be temporally distant.

That being said, such statements could be considered as circumstantial evidence to argue pretext if the plaintiff attempted to prove her case through burden shifting and to raise a “plausible inference of discrimination.”     Nonetheless, the Court found that the plaintiff failed to prove that the employer’s explanation for her termination – that she was insubordinate – was pretext for age discrimination.

First, the plaintiff could not prove that the explanation had no basis in fact.  She argued that she was not insubordinate because she had submitted a written request one day in advance and had obtained verbal approval a month in advance.  However, the Court pointed out that she had been required by her manager’s policy to submit the written request a month in advance and she had admittedly told her manager that she refused to do so because she disagreed with the policy.  She did not ultimately submit her written request until the day before her took time off.  Her “late completion of the form could not cure her original refusal to follow Sonderman’s directive.”

She also could not prove pretext with the isolated and sparse comments that the Bank president had made about another situation. Those comments “were not directed towards Pelcha, not directed towards anyone near Pelcha’s age, and not made in connection with any termination decision at all.”

She also could not show that her employer changed its explanation for her termination by also later documenting issues with her negative attitude and contribution to a negative work environment.  Prior decisions have held that “providing “additional, non-discriminatory reasons that do not conflict with the one stated at the time of discharge does not constitute shifting justifications”.

In addition, she could not show pretext by arguing that the employer failed to comply with its own progressive disciplinary policy.   The policy was clear of the typical steps in the process and clarified that some offenses would justify skipping some or all of the steps.  In conclusion, “an ‘employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’”

Ultimately, she also could not satisfy the prima facie case because she could not prove that she was treated more harshly than another, younger employee because the fact that a younger co-worker may have neglected to turn in the form is not the same as insubordination in refusing to turn in the form. “Neglecting to complete a time off form and defiantly refusing to do so upon being asked by a superior are significantly different actions.”

In the second case, the Court denied the appeal of a physician who was denied in arbitration attorney’s fees as the prevailing party on his FMLA claim.  Gunasekera v. War Memorial Hospital, No. 20-1340 (6^th Cir. 1-12-21).   The physician asserted (correctly) that attorneys’ fees are awarded under the FMLA statute to prevailing plaintiffs.  However, the arbitrator reasoned that the arbitration agreement provided that each party would pay its own fees and, in any event, his attorney had failed to submit evidence of the attorneys’ fees accrued to that point during the hearing.    The Sixth Circuit found that a mere error of law by the arbitrator does not constitute the necessary manifest disregard of the law (if that standard even still applied) as required to overturn an arbitration award.  This was particularly true when the arbitration briefs failed to argue that the FMLA provision overrode the terms of the parties’ agreement.    More importantly, the physician failed to submit any evidence to the arbitrator of the amount of his fees. “In that brief, Dr. Gunasekera merely asserted that he was entitled to receive ‘all of his legal fees,’ which exceeded $35,000.”  Without concrete evidence upon which to base an award of a specific sum, the arbitration could not have erred in failing to award fees to a prevailing party under the FMLA.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

DOL Issues new FAQ on paid FFCRA leave for hybrid school re-opening

Last week, the DOL released some new FFCRA FAQ about employees’ entitlement to paid leave because their child’s school is closed.  Essentially, when the school has adopted a hybrid model and the child is only permitted to attend school a few days/week, then the employee is entitled to paid FFCRA leave on the days when the child must be kept home.  On the other hand, when the parent had the option to send the child to school, but chose to keep the child home to learn remotely out of fear of COVID, the employee is NOT entitled to paid FFCRA leave because it was not the school’s decision; it was the parent’s.

·  My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

·  My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

·  My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Clarifies that FMLA Leave is Available to Care for Children and Parents Outside Medical Setting, Including to Attend School ISP Meetings.

Last month, the federal Department of Labor issued an Administrative Opinion letter that employees are eligible to take FMLA leave to attend meetings at their child’s school to discuss their Individualized Educational Program (IEP) required by the Individuals with Disabilities Education Act (IDEA).   FMLA Op Ltr No. 2019-2-A.  The DOL explained that the “analysis and conclusion in this opinion letter apply to any meetings held pursuant to the IDEA, and any applicable state or local law, regardless of the term used for such meetings.” The DOL had previously approved FMLA leave at attendance at meetings to discuss a parent’s care as well. The employee’s need to attend “IEP meetings addressing the educational and special medical needs” of the children —who have serious health conditions as certified by a health care provider—is a qualifying reason for taking intermittent FMLA leave.”


As explained by the DOL,

The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a son or daughter who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

In the particular fact situation, the employee had already been approved for intermittent leave to care for her children, but the employer would not permit her to use FMLA leave to attend mandatory ISP meetings at the school. The “children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress.”  The DOL found that the employee’s

attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition.”  29 C.F.R. § 825.100(a); see also 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. § 825.112(a)(3).  As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b).  This includes taking leave to help make medical decisions on behalf of a hospitalized parent or to make arrangements to find suitable childcare for a child with a disability.

The DOL had previously approved FMLA leave for attendance at “[c]are [c]onferences related to her mother’s health condition,” because her attendance at these conferences was “clearly essential to the employee’s ability to provide appropriate physical or psychological care” to her mother.  WHD Opinion Letter FMLA-94 . . . “


In this situation, the employee attends

these meetings to help participants make medical decisions concerning [the] children’s medically-prescribed speech, physical, and occupational therapy; to discuss [the] children’s wellbeing and progress with the providers of such services; and to ensure that [the] children’s school environment is suitable to their medical, social, and academic needs.  [The] child’s doctor need not be present at CSE/IEP meetings in order for [the employee’s] leave to qualify for intermittent FMLA leave. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Reverses Employer’s Judgment on FMLA Claim When Policy Penalized Employees Taking FMLA Leave Differently Than Other Employees on Unpaid Leave

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an FMLA claim because the employer’s perfect attendance system (which reduced attendance points under its disciplinary policy) made exceptions for pre-scheduled leave (i.e., holidays, military leave, jury duty, bereavement leave, and union leave), but not FMLA leave.  Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6^th Cir. 2019).  The employer’s no-fault attendance system did not assess attendance points for FMLA absences, but would only “roll back” attendance points after 30 consecutive days of perfect attendance under its system (which did not count FMLA absences in calculating perfect attendance).  The plaintiff had been fired under the no-fault attendance policy and argued that he would not have been terminated if the employer had given him credit for perfect attendance when he took FMLA leave.  The Court found that “denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.”  In short, " FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, [the plaintiff] was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way."


According to the Court’s opinion, the employer utilized a no-fault attendance policy which did not assess points for FMLA absences.  The plaintiff exercised his FMLA rights in connection with his migraine headaches, which caused him to miss a few days of work each month.  The employer would drop points from an employee’s attendance record for every 30 consecutive days that the employee had perfect attendance.  As mentioned, an employee could be absent for various approved absences (like holidays, vacations, bereavement leave, jury duty and military leave) and still get credit for perfect attendance because these issues were treated as days worked  However, FMLA leave was not considered to be perfect attendance and was not treated as days worked.  


Whenever the plaintiff took a day off for FMLA leave, the 30-day calendar restarted for purposes of calculating perfect attendance.   Although taking FMLA leave did not add points to his disciplinary record, it re-started the perfect attendance clock. When he reached 12 attendance points (for non-FMLA issues), he was terminated.  His union did not pursue arbitration because his termination did not violate the bargaining agreement.   It was undisputed that the plaintiff received all FMLA leave which he requested.

It is considered interference for purposes of the Act for employers to use the taking of FMLA leave as a negative factor in employment actions.  29 C.F.R. § 825.220(c).  To prevail on his FMLA interference claim, [the plaintiff] must show that taking FMLA-protected leave was used as a negative factor in defendant’s decision to terminate him.  The sole issue on appeal is whether [the employer]’s “Attendance Point Reduction Schedule” violates the FMLA by serving as a “negative” factor in defendant’s decision to terminate Dyer.

               . . ..

The plain language of the FMLA is clear.  “At the expiration of the employee’s leave period, she must be reinstated to her position or to a position equivalent in pay, benefits, and other terms and conditions of employment.”  . . . . Therefore, denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.  Put differently, “attaching negative consequences to the exercise of protected rights surely ‘tends to chill’ an employee’s willingness to exercise those rights.”   . . . .  Resetting [the plaintiff's] perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed. . . . Although the policy here does not formally hinge point reduction on not taking FMLA leave, the practical result is the same for someone like Dyer who must take frequent intermittent FMLA leave.

Based on the language of the Act and the Department of Labor regulations, point reduction can be viewed as an employment benefit, the accrual of which, like the accrual of other benefits or seniority, must be available to an employee upon return from leave.  See 29 U.S.C. § 2614(a)(2).  The regulations state that “[a]t the end of an employee’s FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began.”  29 C.F.R. § 825.215(d)(1).  Whereas an employee is not entitled to “accrue any additional benefits or seniority during unpaid FMLA leave[,] [b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.”  Id. § 825.215(d)(2).  The FMLA defines “employment benefits” expansively to mean “all benefits provided or made available to employees by an employer, including . . . sick leave, [and] annual leave,” whether provided by practice or written policy.  See 29 U.S.C. § 2611(5).  Point reduction fits within this definition, because it is both a benefit Ventra Sandusky affords its employees to flexibly manage their absences, and because the reduction of a point effectively awards an additional day of allowed absence, akin to awarding sick leave.  Consistent with this approach, the Seventh Circuit has held that “wiping a point off the absenteeism slate is indeed an employment benefit.”  Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750–51 (7th Cir. 2010).  In other words, [the plaintiff's] FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.

In two separate opinion letters, the most recent of which was issued in August 2018, the Department of Labor applied these regulations to no-fault attendance and point-reduction policies and stated that accrual toward point reduction must, at the very least, be frozen during FMLA leave.  In its 1999 opinion letter, the Department of Labor opined that an employer’s FMLA obligation to restore an employee to the same or equivalent position includes the obligation to restore the number of days accrued toward absentee point reduction.   . . . . It clarified the point by example:  “If the employee had 45 days without a recordable [absence] at the time the unpaid FMLA leave commenced, the employer would be obligated to restore the employee to this number of days credited without an [absence].”  Id.  In 2018, the DOL reaffirmed the point, approving a policy under which “the number of accrued points remains effectively frozen during FMLA leave.”  . . . . Although these letters are not binding, they are entitled to persuasive effect.

               .. . .

In addition, [the employer] is not entitled to summary judgment if FMLA leave is treated less favorably than other equivalent leave statuses.  The district court held that the policy did not violate the Act because “equivalent” non-FMLA leave also interrupts the 30-day window.  But, under [the employer]'s policy, there is a disputed issue of material fact as to what constitutes “equivalent” leave and whether any equivalent leave statuses similarly reset the point-reduction clock.  Although neither the FMLA nor its implementing regulations define “equivalent leave status,” the regulations imply that equivalency turns on whether the leave is paid or unpaid.  For example, in describing the equivalency principle, the regulations state that “if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave.”  See 29 C.F.R. § 825.220(c) (emphasis added).  At her deposition, [an] employee, Catherine Cupal, stated that under the collective bargaining agreement, active duty military leave and some forms of union leave are both unpaid leave and yet, unlike FMLA leave, they do not restart the 30-day point-reduction clock.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects FMLA Leave to Rest Shoulder (by playing golf) When FMLA Use was Approved Only for Incapacitating Flare-Ups Which Prevented Plaintiff from Working

Last week, the Sixth Circuit affirmed an employer’s summary judgment on an FMLA retaliation claim where the employee was fired after being observed on two occasions playing golf when he had called off work under the FMLA due to a shoulder disability.  LaBelle v. Cleveland Cliffs, Inc., No. 18-2444 (6^th Cir. 9-13-19).  When the employer approved his intermittent leave request, it limited his FMLA use to the monthly “flare-ups” of his shoulder condition and four medical appointments each year.  However, the plaintiff was stacking his FMLA leave in between or following pre-scheduled vacation time, he says, to give his shoulder a rest.  The employer concluded that if he could play golf, he could work.  The FMLA leave was approved for “flare-ups” that incapacitated him, not for rest by playing golf.  The Court agreed and held that the employer did not unlawfully retaliate in firing the employee for FMLA abuse and did not even need to rely on an honest belief defense.

According to the Court’s opinion, the employee suffered bone deterioration from avascular necrosis and had already had hip replacement surgery in 2012.  The condition then began affecting his shoulders, causing him to suffer constant pain.  After receiving disciplinary counselling for attendance in 2016, he explained that he was missing work because of shoulder pain and was directed to seek FMLA leave.  His first FMLA request was denied because he failed to show the necessary incapacity or regular medical treatment for a chronic condition.   His next request from a different physician was granted for intermittent monthly three-day flare-ups and for four medical appointments per year.  


Over the next year, the employer then noticed that the plaintiff suspiciously took his FMLA leave in between or immediately following pre-scheduled vacation and assigned a private investigator to observe him on FMLA days, which suspiciously coincided with the plaintiff’s Tuesday golf league.

The videos showed that the plaintiff’s golf swing was unimpaired without any sign of pain or discomfort.  The employer provided the plaintiff with an opportunity to defend himself from what appeared to be FMLA abuse.   He explained that he was in constant pain and he thought that he could take the FMLA whenever he wanted and so he usually attached them to a weekend or other time off in order to give his shoulders the maximum rest from his repetitive duties. He claimed that golf was not nearly as hard on his shoulders as his job.  

The employer concluded that if the plaintiff was well enough to golf, he was well enough to work and terminated his employment.  He pursued union arbitration, but lost.  He then filed his federal lawsuit, alleging both FMLA interference and FMLA retaliation.  


The Court agreed that he had no interference claim because the employer permitted him to take FMLA leave and only fired him after he returned to work.  As for his retaliation claim, the plaintiff pointed to emails where the HR employees expressed hostility to FMLA use and desire to terminate some slackers.   However, in attempting to prove pretext, he did not argue that his golfing was not the actual reason for his termination.  Instead, he argued that his golfing did not constitute FMLA abuse – i.e., that the employer’s articulated reason for his termination had no basis in fact.   Sadly for him, the Court agreed with the employer that his FMLA use had only been approved for medical appointments and flare-ups, not for rest.

But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.  Thus, as the arbitrator put it, “[t]here is no doubt that [LaBelle] did not use his FMLA leave in accordance with the restrictions imposed by [his doctor], or in accordance with the purposes of the law.”  . . .  If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.   

The Court found that the plaintiff failed his burden of showing that the employer’s reason had no basis in fact.  Accordingly, the employer need not rely on an “honest belief” defense that it honestly believed the plaintiff had abused his FMLA leave even if the golf game constituted rest from his repetitive motion duties. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.