Say what?!? Not returning employee calls may be FMLA retaliation

An eligible employee may take up to 12 workweeks of leave under the Family and Medical Leave Act in a 12-month period. If an employee exhausts all of her FMLA leave and fails to return to work after the 12 weeks are up, can’t the company simply fire the employee? Well, it may not be that easy, as you’ll find out after the jump…

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Last week, a Pennsylvania federal judge issued a sobering reminder about how firing an employee shortly after exhausting FMLA leave can by sticky business.

In Hofferica v St. Mary Medical Center, a Staff RN alleged that her employer approved her for intermittent FMLA leave. The Staff RN claims that, during her leave, she and her husband would call in to the hospital to provide leave updates — but the hospital did not return these calls. The Staff RN further claimed that when she later sought a brief extension of her FMLA leave, her employer fired her because her FMLA had expired and she had failed to return to work. Accordingly, the Staff RN sued her employer for FMLA interference and FMLA retaliation.

The FMLA does not require reinstatement if FMLA leave expires.

To establish an FMLA-interference claim, a plaintiff must show that she was entitled to FMLA benefits and her employer denied them. An employer may defend by demonstrating that the plaintiff exhausted her FMLA leave and, thus, was not entitled to reinstatement. In Hofferica, the plaintiff conceded that she had exhausted her FMLA leave when her employer fired her. Therefore, the court had to dismiss her FMLA-interference claim.

But did the employer retaliate against the Staff RN?

If an employer fires an employee because she took FMLA leave, then that employer has engaged in FMLA retaliation. Sometimes the timing of the firing suggests that it was motivated by the taking of leave under the FMLA. However, then the employee fails to return to work, as was the case here, that argument lacks force.

Still, there are other ways to prove retaliation, One of them is with a showing of “ongoing antagonism.” Here, the Staff RN alleged that her employer’s failure to return the weekly status calls. While this may not constitute overt antagonism, the court found that it does suggest an antagonistic attitude toward the employee, particularly where — as here — such refusal began after the employee initiated FMLA leave, and continued despite communications from the employee.

Based solely on the employer’s failure to return calls placed during FMLA leave, the court allowed the plaintiff to continue to pursue her FMLA retaliation claims.

Takeaways for employers

No prejudice = no FMLA interference. When an employee is afforded all of the FMLA time that she requests, she is not prejudiced. And if the employee is not prejudiced, she has no FMLA interference claim.
Timing can create an FMLA-retaliation claim. Let’s change the facts of Hofferica around a bit and assume that the Staff RN returned to work before exhausting her FMLA. Now let’s assume that, days later, the Staff RN is fired for what the employer claims are performance issues. Under that fact pattern, you’d have to wonder why the firing wasn’t effected before the leave was taken. Therefore, the timing in that fact pattern could create the inference of FMLA retaliation and potentially allow a plaintiff to get to trial.
Remember the interplay between FMLA and the Americans with Disabilities Act. If a disabled employee exhausts here FMLA leave, the employer may still have an obligation to provide that employee with additional time off under the Americans with Disabilities Act to accommodate the employee. More on that here.

The FMLA is one of those laws that really gets employers — well-intentioned or not — fouled up. If an employee comes to you with FMLA questions or issues, don’t hesitate to contact outside legal counsel if you don’t have the answers at your fingertips.