Hunton Employment & Labor Perspectives

Despite its enactment nearly two decades ago, the Family and Medical Leave Act (FMLA) continues to evolve through judicial interpretation.  The following five cases from 2011 present lessons of which all employers should be mindful heading into 2012.

Hofferica v. St. Mary Medical Center (E.D. Pa 2011).  Hofferica teaches employers to be responsive and accessible to employees who are absent on FMLA leave.

While taking FMLA leave to recover from surgery, the employee left a series of telephone messages with her employer providing updates on her recovery.  In one message, the employee attempted to notify the employer that her physician had recommended extending her leave by one week.  The employer never responded to any of the employee’s telephone messages.  And, when the employee did not return to work as originally scheduled, her employment was terminated.

In the end, the U.S. District Court for the Eastern District of Pennsylvania held that the employer’s failure to return the employee’s phone calls during her FMLA leave showed an “antagonistic attitude” sufficient to support the employee’s FMLA retaliation claim.

Terwilliger v. Howard Memorial Hospital (W.D. Ark. 2011). Terwilliger, on the other hand, warns employers not to be overly aggressive in communicating with employees who are absent on FMLA leave.

While the employee was on FMLA leave in this case, her supervisor began calling her on a weekly basis to determine her return-to-work date.  The employee later returned to work without objection from the employer.  But, the employee claimed that the employer had interfered with her right to FMLA leave by pressuring her to return to work before she was ready to do so.  In an initial ruling, the District Court for the Western District of Arkansas upheld the employee’s FMLA interference claim.

The court later dismissed the FMLA interference claim because, as it turns out, the employee had been released by her physician to full duty at the time she was “pressured” to return to work.  The court’s initial ruling, however, sent a warning signal to employers that aggressive communication with employees who are absent on FMLA leave can be as problematic as not communicating with those employees at all.

Adams v. Fayette Home Care (3d Cir. 2011).  Adams also addresses the issue of contacting employees who are absent on FMLA leave.  Specifically, Adams assures employers that they may wait until an employee returns from FMLA leave before disciplining the employee based on evidence discovered during the employee’s leave.

The employer, a hospice home care provider, received reports from a patient that the employee, an at-home caregiver, had been showing patients photographs of her boyfriend’s genitalia.  Naturally, the employer planned to fire the employee due to this misconduct.  But, because the employee was on FMLA leave at the time of the reports, the employer waited nearly two months until the employee returned to work before carrying out the termination.

In a victory for the employer, the U.S. Court of Appeals for the Third Circuit denied the employee’s FMLA retaliation claim, holding that there was no evidence of “sinister motive” on the employer’s part in deciding to postpone the termination until the conclusion of the employee’s FMLA leave.

Sanders v. City of Newport (9th Cir. 2011).  Sanders reminds employers that, if they deny an employee reinstatement at the conclusion of FMLA leave, the employer should be prepared to prove why the employee did not have a right to return to work under the FMLA.

In this case, the employer did not permit an employee to return to work from FMLA leave because the employee had been placed by her physician under a permanent restriction for which the employer could not “guarantee” an accommodation.  The employee subsequently sued her employer for interfering with her FMLA right to reinstatement.

Without addressing the merits of the case, the U.S. Court of Appeals for the Ninth Circuit held that the employer carries the burden of proving that an employee taking FMLA leave does not have a right to reinstatement.  The Eighth, Tenth, and Eleventh Circuits had previously reached the same conclusion.  In contrast, the Seventh Circuit has placed the burden of proof on the employee.  Because the issue appears unsettled in the courts, employers, as a precaution, should be prepared to explain why it has denied reinstatement to an employee at the conclusion of FMLA leave.

Millea v. Metro-North Railroad Co.  Finally, it is helpful to remind employers about Millea, a case discussed in a previous article in this blog.  As we noted then, Millea warns employers about a potential trend in the courts to expand the scope of the FMLA’s anti-retaliation provision.  In Millea, the Second Circuit held that retaliation claims under the FMLA should be reviewed under standards similar to the broad standards applied to Title VII retaliation claims.  Not only does this decision place a greater burden of proof on employers facing individual claims of FMLA retaliation, it also could subject employers to a widespread increase in FMLA retaliation claims similar to the steady increase in Title VII retaliation claims plaguing employers in recent years.

These five cases from 2011 could pave the way for future developments in 2012 concerning the FMLA.  By understanding and anticipating these developments, employers can ensure that they remain compliant with the law and avoid costly and disruptive litigation.