Entries in FMLA (2)

Thursday
Feb142013

Mass. Federal Court: Employees Must Follow FMLA Rules

This week, in what may be seen as a gift to employers, a Massachusetts federal court upheld an employers right to require employees to follow the rules when requesting FMLA leave. The Court found that the employee, who suffered from breast cancer, failed to make the necessary good faith effort to provide timely FMLA certification to her employer and so could not claim her unexcused absences were covered by the FMLA.  The case, Brookins v. Staples Contract & Commercial, Inc., provides employers with a real life example of what employees can and cannot do with regard to FMLA leave.  

The employee, Brookins, suffered from a recurrence of breast cancer.  Brookins also had a record of unexcused absences, which put her at risk for termination.  When her employer brought her attendance problems to her attention, Brookins disclosed for the first time, the recurrence of her illness and stated that many of the absences at issue were related to her treatment.  In accordance with the FMLA regulation (29 C.F.R. § 825.305(b)), the employer gave Brookins 15 days to return the certification form.  

When Brookins did not return the certification for approximately 6 weeks (after having been granted numerous extensions), her employer converted her absences to unexcused leave and terminated her employment. Brookins sued for FMLA interference and retaliation, both of which the Court dismissed on summary judgment.

Insights for Employers

Under FMLA regulations, while employers have the right to request that an employee obtain sufficient medical certification to support an FMLA covered absence within 15 days, employees failing to comply can maintain their entitlement if the request for certification when it is "not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts."  29 C.F.R. § 825.305(b)

Since Brookins blew the 15 day turnaround, she could save her FMLA claim only if she could establish "diligent, good faith efforts" to return the certification on time, which the Court found she did not do. Brookins asked two surgeons to fill out the form.  Each declined.  She did not do anything else to fulfill her obligation and so the Court found she did not meet her burden.

The Court pointed out what Brookins could have done but did not, namely:

  1. Asking her primary care provider, her oncologist or her OB-GYN for the certification, since she saw each of them soon after she had requested the certification from her surgeons;
  2. Contacting the surgeons she had asked for the certification again, explaining the importance of completing the certification;
  3. Mailing or hand delivering the form to any of her doctors.
  4. Contacting her employer to explain her difficulties in obtaining timely certification and requesting an extension before the 15-day deadline expired. 

Each of these steps not taken provides employers with a helpful example of what they can expect from employees requesting FMLA leave.  Employers can deny a request for FMLA leave to employees who do not comply with their obligations to use diligent good faith to provide certification.  29 C.F.R. § 825.313.

Simply, even employees otherwise eligible for FMLA leave must follow the rules in order to be covered by the law's protections.

Thursday
Nov012012

Learn From the Law Firm: Employers Must Curb Insensitive Comments

The Family Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of leave to care for a new baby or a family member with a serious medical condition.  But a Boston-based attorney claims that, after used his FMLA leave to care for his wife who was suffering from serious mental illness following the birth of their baby, his career was negatively impacted.  In mid-October, in Ayanna v. Dechert LLC, the attorney's FMLA retaliation claim survived the firm's motion for summary judgment in part because when the attorney was informed that he was being let go, a firm partner stated that his "personal" issues constituted one of reasons.
 
Although the U.S. District Court for the District of Massachusetts dismissed the associate attorney's sex discrimination claim (because there was evidence that women attorneys were treated similarly badly when they returned from family care leave), it refused to dismiss the FMLA retaliation claim because of the comment made and because, despite the law firms assertion that the termination resulted from his low billable hours, unlike the plaintiff, many of the other attorneys who were let go at the same time had received warnings for low hours the previous year and there was no evidence that all attorneys with similar hours were terminated.

 

The lessons are clear:  when it comes to retaliation claims under the FMLA or other protective statutes: employers must beware - even one insensitive comment that could be viewed as discriminatory can sink a case.  As this happened at a legally sophisticated employer, it can happen anywhere.  All managers, supervisors and HR professionals should be trained to avoid indiscreet comments that can force employers terminating employees to defend those decisions in front of a jury.  

 

Another lesson for employers can't be overstated -- employers must be consistent in their application of discipline.  If other employees (especially those who have not recently returned from FMLA leave) are guilty of the same infraction, they should be subject to similar discipline or their situation must be capable of being distinguished in some meaningful way.  As always, clear, uniformly applied policies provide the best defense.