FMLA retaliation or rightful discharge?

published in Oklahoma Employment Law Letter | May 1, 2012

By Charlie Plumb

The Family and Medical Leave Act (FMLA) permits employers to require all employees — including those taking FMLA leave — to adhere to a system in which they must notify their immediate supervisor of an upcoming absence. By the same token, you can’t fire an employee based on FMLA-protected absences. Understandably, you might be nervous about firing an employee who has a history of FMLA-protected absences. A March 2012 court decision suggests how you can successfully walk that tightrope — firing an employee who has taken FMLA-protected leave in the past but has also violated company call-in procedures.

EMC’s PTO and call-in policies

Employers Mutual Casualty Co. (EMC) had a paid time off (PTO) policy under which employees accrued PTO throughout the year. When an employee took FMLA leave, he was required to use accrued PTO at the same time. EMC asked employees to schedule anticipated PTO as far in advance as possible. Unscheduled PTO occurred when an employee could not give 24 hours’ advance notice.

Because unscheduled PTO was disruptive, its use was discouraged, and excessive unscheduled PTO could lead to discipline. Leave without pay (LWOP) occurred when employees exhausted their accrued PTO. The LWOP classification was used for emergencies and when employees were on unpaid FMLA leave.

According to EMC’s employee handbook, all employees — FMLA-protected or otherwise — were required to notify their direct supervisor of an absence as soon as the office opened. Two consecutive days of no-call/no-show (including failing to give notice to the supervisor) was treated as a voluntary resignation.

Lovland gets a warning

Jean Bloomberg was president of EMC’s risk services division. She had recruited Donna Lovland to work as a claims supervisor and considered her a good employee. In 2008, Lovland injured her back, which caused her to miss work periodically.

In January 2009, Bloomberg reviewed the attendance of all employees in her division using EMC’s new payroll system. The review showed that Lovland had an unacceptable number of absences. Bloomberg suspected some of the 2008 absences were caused by her back injury, so she asked Lovland if she would like to retroactively designate any of the absences as FMLA leave. Lovland submitted medical certifications that supported intermittent leave for some of her 2008 absences.

Bloomberg then met with an employee relations consultant, who reviewed Lovland’s medical certifications and 2008 attendance record. Her attendance record was revised, and consistent with the medical certifications, many of her 2008 absences were retroactively designated as FMLA leave. Even after the retroactive designation of some of her absences as FMLA leave, however, she still had an unacceptably high number. That caused Bloomberg to review her 2006 and 2007 attendance records (before her back injury occurred). During those two years, she also had excessive unscheduled PTO usage.

Bloomberg sought advice from EMC’s HR director, Kristi Johnson, in deciding whether an attendance warning was appropriate. In their review, Bloomberg and Johnson were careful to exclude from consideration any of Lovland’s FMLA-protected absences. But they both came to the same conclusion: Even if they ignored her FMLA absences, Lovland’s attendance demonstrated a pattern of excessive unscheduled PTO usage, and a written warning was justified.

On February 23, Bloomberg presented Lovland with a written warning, reviewing her revised attendance record, which did not count FMLA-protected absences. The written warning stated: “This corrective action notice does not include any days that you reported as FMLA” leave. The warning required Lovland to keep unscheduled PTO to an absolute minimum, schedule PTO 24 hours in advance, carry a reserve of PTO, and communicate whether any unscheduled PTO was related to FMLA-covered leave. Lovland didn’t contest the warning and acknowledged that she knew any further non-FMLA-related absences could result in the loss of her job. Her attendance immediately improved.

More absences after warning

In April, Bloomberg approved FMLA leave and additional PTO so Lovland could help care for her terminally ill father. Sadly, her father soon died. In May, she received his death certificate in the mail and became very upset. At the time, Bloomberg was traveling. Lovland left Bloomberg a voice mail explaining that she would be late to work on May 12.

On May 13, Lovland called a coworker instead of Bloomberg to report that she wouldn’t be at work that day or the next. She didn’t work on May 13 or 14 and didn’t attempt to contact Bloomberg or leave a message for her on either one of those days. When Bloomberg returned and reviewed the situation with Johnson, they decided to fire Lovland for violating the February written warning and missing two consecutive days of work without notifying her direct supervisor.

FMLA retaliation claim

Lovland sued EMC under the FMLA over her firing. Keep in mind that the FMLA recognizes two categories of claims under its “prohibited acts” section. The first category — FMLA interference — involves situations in which an employer denies an employee benefits or leave to which she is entitled under the Act. The employer’s intent is irrelevant. Under an interference claim, the only question is whether the employer failed to provide FMLA benefits to which an employee was entitled.

The other category — FMLA retaliation — is different. In a retaliation claim, an employee accuses her employer of retaliating against her because she took FMLA leave. In this type of claim, the employer’s intent is critical: Was its decision to take action against the employee motivated by the fact that she took FMLA leave?

In this case, EMC hadn’t interfered with Lovland’s rights. She had received all the FMLA leave and benefits to which she was entitled. The case turned on whether the company’s decision to fire her in May 2009 was made in retaliation for her earlier FMLA absences.

Rightful discharge

Thanks to Bloomberg and EMC’s thoughtful handling of Lovland and her absences, the lawsuit against the company was dismissed. First, when red flags went up about Lovland’s 2008 absences and Bloomberg was aware she had injured her back that year, the supervisor went the extra mile to offer retroactive FMLA designation and protection for those absences. Next, when reviewing the information and preparing the February 2009 written warning, Bloomberg and Johnson were extremely careful to exclude from consideration any absences or attendance issues that were FMLA-related. They also considered Lovland’s three-year pattern of unsatisfactory attendance, including years preceding the back injury, before beginning the disciplinary process.

The ultimate discharge decision came about after Lovland violated EMC’s written no-call/no-show policy when she didn’t notify Bloomberg, her direct supervisor, of her absences on May 13 and 14. In addition to being well publicized, the call-in requirement was consistently enforced. Lovland was unable to identify any other employees with poor attendance records who received more lenient treatment after violating the no-call/no-show policy. Lovland v. Employers Mutual Casualty Co., 18 WH Cases 2nd 1552 (8th Cir., 2012).

Follow Bloomberg’s example

Disciplining and discharging employees with a history of taking FMLA leave has some risks. But Bloomberg and EMC showed us a good path to take. Here are some things to keep in mind:

  • Make sure employees are receiving FMLA rights to which they are entitled. That means proactively designating absences as FMLA leave when appropriate.
  • When making employment decisions based on absence or attendance issues involving employees who have taken FMLA leave (or have been on workers’ compensation leave), review the absence and attendance circumstances carefully. Be in a position to demonstrate that any employment decisions you reached didn’t involve absences that were FMLA-protected or subject to workers’ comp coverage.
  • If you have excluded any absences protected by the FMLA or workers’ comp and you intend to take an employment action based on your attendance policy, make sure you have universally and clearly communicated the policy to all employees and consistently applied it in the past.