FMLA Cases Highlight Potential Pitfalls

Wednesday, October 07, 2009

FMLA administration has never been more challenging that it is today. Two recent cases demonstrate the variety of issues that an employer faces in managing this difficult law.

In the case of Hunter v. Valley View Local Schools, the employee was in a car accident that was unrelated to her employment. The accident affected her foot and knee. The result was that she took intermittent FMLA leave for a three-year period from her custodian job. After three rounds of surgery, she ultimately returned to work with restrictions that she could not lift, push or pull more than 10 pounds and could not climb stairs or ladders.

The next month, she was literally called into the principal’s office for a meeting with the principal and school district’s superintendent. They told her she would be put on an involuntary, unpaid leave for up to one year “based on your doctor’s restrictions limiting your ability to perform your job and excessive absenteeism for the past four (4) years.” This leave was later extended a year, and ultimately the employee returned to work with only the climbing restriction.

The employee claimed her prior use of FMLA was a motivating factor for this unpaid leave. The trial court agreed with the employer, stating that the medical restrictions would have caused the unpaid leave regardless of the prior use of FMLA. On appeal, the appellate court disagreed, applying a different standard. Specifically, the court held that there was an issue of material fact as to whether FMLA was a motivating factor in the decision. The superintendent had admitted in a deposition that he considered her past attendance issues, which were FMLA protected, in making the decision, along with the fact that she could no longer perform her job duties.

The second case, Scobey v. Nucor Steel-Arkansas, presents the situation of a concerned employer that tried to help an employee who had several unexcused absences due to drunkenness. The employer referred the employee to an Employee Assistance Program, which had him admitted for an inpatient treatment program. Nucor designated the leave as paid leave, but did not designate it as FMLA. Later, when he returned to work, he was demoted him for his absenteeism to an entry-level position along with a reduction in pay.

The employee sued for FMLA interference and retaliation. Both the trial court and court of appeals agreed that the employer had done nothing wrong. Regarding the interference claim, the employee gave no reason to the employer that his unexcused absences might be protected by FMLA. Regarding the retaliation claim, the courts observed that Nucor’s attendance policy would have allowed employment termination, not just demotion. Because the employee never triggered an FMLA issue with his absences, FMLA retaliation was not possible. He had not exercised any FMLA rights against which the employer might retaliate.