Stop me if this sounds familiar.
An employee has a bad day at work. His supervisor assigned him work that he didn’t want to perform. Clearly upset with the situation, the employee begrudgingly completes the assignment and promptly announces that he will go on vacation for a few days. However, the supervisor turns him down since the employee provided no advance notice.
Undeterred, the employee decides to take FMLA leave. His wife had been sick with a heart condition, and the company had previously approved him for intermittent leave under the Family and Medical Leave Act to care for her. After that, he just calls in sick.
Well, isn’t that convenient? Perhaps it’s too convenient. If the company decides to fire the employee, has it committed FMLA interference?
According to the Eighth Circuit Court of Appeals, it depends.
FMLA interference occurs when an employer won’t authorize FMLA leave or discourages an employee from using it. By refusing to credit his absences as FMLA leave and then firing him for leaving work to care for his sick wife, the company may have done both. However, the employee’s claim will fail unless he can show that his absence was “medically necessary” due to his wife’s serious health condition.
In this case, the employee claimed that the “medically necessary” care included “transportation to appointments” or the “hospital in case of worsening chest pain or shortness of breath.” But, at his deposition, the employee claimed he told his supervisor he was going “home on FMLA” because his wife was “not feeling very good.”
Is that enough?
The Eighth Circuit thought it was just enough for a jury to reasonably conclude, based on her symptoms and the doctor’s paperwork, that his presence at home was “medically necessary.” However, a jury could also reason that if the care was “medically necessary,” why did the employee report to work? Then there’s that curious vacation to FMLA pivot.
The irony here is that judges don’t make judgment calls. So, a jury will decide whether the company interfered with the employee’s entitlement by refusing to treat his absences as covered by the FMLA or by firing him for walking off the job, assuming he had a right to take leave in the first place.
Remember, HR professionals, some of your employees are FMLA professionals, too. So remove the emotion from FMLA leave administration. If an employee approved for FMLA requests leave consistent with the leave certification, employers roll the dice by denying it based on a belief (without supporting evidence) that the employee may be taking advantage.