Five things to keep in mind when providing FMLA leave

The Family and Medical Leave Act (FMLA) affords eligible employees up to 12 workweeks of leave during any 12-month period for, among other things, a serious health condition that renders the employee unable to work. A company that fires an employee in the middle of approved FMLA leave has engaged in what the law deems “FMLA interference.”

However, there are some ways around the FMLA-interference claim. If the employer can show that it would have fired the same employee had the employee never taken leave, then the employer has a viable defense. Similarly, if the evidence shows that the employer did not prejudice the employee when it fired him, then the employee cannot prevail on his FMLA-interference claim.

Let that sink in for a second. Employer fires employee and employee suffers no prejudice?!? I’ll explain after the jump…

The case is Hearst v. Progressive Foam Technologies, Inc. There are three key facts to this case:

• Employee leaves work temporarily to treat a serious health condition;
• Employee’s condition worsens and he submits a doctor’s note confirming that he will be out of work for more than 12 workweeks; and
• During the employee’s leave, he is fired.

Note: Although, the parties disagreed when the 12-week period would begin to run. However, as you will see below, this was immaterial because…

The plaintiff suffered no prejudice.

In 2002, the United States Supreme Court held that an employee must show prejudice in order to prevail on a FMLA-interference claim. Fast forward nearly 10 years to our case. In Hearst, the plaintiff had a medical condition rendering him unable to work for substantially longer than the twelve-week FMLA period to which the plaintiff believed he was entitled. That his employer fired him during his FMLA-leave was of no moment because the plaintiff could not show that he would have returned to work before the twelve-week leave, as the plaintiff had calculated it, had expired. Ultimately, the plaintiff could not prove any prejudice — that his employer deprived him of any FMLA entitlement– as a result of his firing.

Employer wins.

Now before you go firing all of your seriously-injured employees on FMLA…

Five things you should keep in mind.

1. Remember the intersection between the FMLA and the Americans with Disabilities Act. Although not all employees who take FMLA are “disabled” for purposes of the ADA, many are. Under the ADA, an employer must reasonably accommodate a disabled employee. As I discussed recently, this obligation may extend to affording a disabled employee time off from the job to recuperate insofar as it will not cause undue burden to the employer. Is there a magic number of days off that an employer must provide? No.  Whether and how much leave an employer must provide analyze will be measured on a case-by-case basis. Rest assured, however, the bigger and stronger your business, the larger that number could be.
2. Serious injuries tend to heal up quickly when faced with the specter of losing one’s job. Had the plaintiff in Hearst presented evidence that he would have returned to work before his FMLA ran out, he could have prevailed on his FMLA-interference claim.
3. There are other ways to violate the FMLA. Here in the Third Circuit, for example, a plaintiff may present claims not only for FMLA interference, but also for FMLA discrimination and FMLA retaliation. Although some facts and circumstances of these claims may overlap, they have different legal elements. A plaintiff could lose a FMLA-interference claim and prevail on his claim of FMLA retaliation.
4. State and local laws may vary. Many states have their own versions of the FMLA. Most run concurrently with the FMLA. Others may run consecutively, thus extending the time that a qualifying employee may take off from work. In cases where these time periods are stacked, terminating an employee who does not return to work in 12 weeks, may not violate the FMLA, but may violate a state equivalent.
5. If you have a more generous leave policy, it will control. Most qualifying employers have FMLA policies which track the FMLA. That is because the FMLA sets the minimum standard for qualifying leave. Some companies, however, have leave policies that are more generous than the FMLA. If your policy is more generous, you must adhere to it, especially if it means giving employees more than 12 weeks of leave.