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 (6th 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.
