According to the Court’s opinion in Anderson, seven months after being hired, the plaintiff requested
and was permitted to work from home one day each week because she said she
needed a break from workplace stress created by a co-worker (who criticized her
work and suggestions). Within a few
months, the employer ultimately decided to replace her because of these and
other absences related to medical appointments.
When the plaintiff discovered (around her first–year anniversary date) that
her replacement was being recruited, she resigned a few months later due to a
hostile work environment, obtained other employment and brought suit alleging violations
of the FMLA. The Court rejected her FMLA
interference claim because the employer was never obligated to offer her FMLA
leave if she never requested it or put it on notice that she needed it. Moreover, her requests to work from home could
not constitute an FMLA request or notice of a need for FMLA leave because she
would still be working. FMLA leave
implies a need for a leave of absence from working – not just a leave of
absence from the employer’s workplace. [That issue is the subject of an
ADA case against Ford Motor Company pending before the entire Sixth
Circuit].
The Court also rejected the plaintiff’s argument that the
employer interfered with her right to FMLA leave by firing her based in part on
her medically-related absences because those absences occurred before the plaintiff qualified for FMLA
leave by working for the employer for at least twelve months.
Her retaliation claim failed for the same reasons: she could not show that ever requested or
took FMLA-protected leave. None of her
activities were protected by the FMLA before the employer decided to fire and
replace her.
In Cundiff, the
employer’s attendance policy (which was also contained in the CBA) provided
that employees must call off work prior to the start of their shift and failure
to call off work for three consecutive days would lead to termination. The plaintiff called off work for two days
for “personal reasons” and then did not report or call off from work for at
least three consecutive days, which lead to his being terminated. He
retroactively obtained a medical excuse from his physician (dated after his
termination date) documenting a genuine serious medical condition and attempted
to get his absences excused. He claimed
that the employer had an unwritten practice of waiving advance notice of a need
for FMLA, but apparently was unable to prove it. The Court found the employee did not qualify
for FMLA leave because he failed to provide advance notice of his need for
leave pursuant to the employer’s customary call-off policy. Therefore, the employer could not have
unlawfully interfered with the plaintiff’s FMLA rights because the employee did
not qualify for 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 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.
