A Little(r) Painkiller for Your FMLA and ADA Migraines
ACC CO Fall Frenzy
October 5, 2017
Presented By
Erin Webber
Al McLaughlin
Shareholder, Littler Denver
Office Managing Shareholder, Littler
Denver
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Rich Castleton
Senior General Attorney – Employment
Practices, Ball Corporation
© Littler Mendelson, P.C. | 2017 Proprietary and Confidential
• Disclaimer: The information in these slides and in this presentation is not
intended as a substitute for legal advice or for working with counsel as
specific situations arise. The techniques we will be discussing today may
present open legal questions and, generally speaking, require hands-on,
individualized involvement. And even then, many of the techniques in this
presentation are not for the faint of heart.
The Fine Print
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To position your organization to take some of the creative steps we will discuss today, the groundwork needs to be complete in the following areas:
• Job descriptions
• Hiring communications
• Pre-employment paperwork
• Good forms and letters
• Strong policies
• Attention to interaction among different policies
• Did we say job descriptions??
Employer Homework
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How BIG of a headache are FMLA and
ADA compliance issues for you and your
organization?
Question
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a) It gives me a migraine to even consider
b) I am the FMLA/ADA master and I eagerly
welcome each leave request and/or request for
accommodation
c) We have fewer than 50 employees so who
cares?
Answer:
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• Family and Medical Leave Act (FMLA)
– For employees who have worked for
employer for awhile
– Protected time-off
– Employees cannot be punished for
invoking their FMLA rights
– Fixed and inflexible
– Unpaid, job-protected leave up to 12
workweeks in a 12-month period
– Detailed eligibility criteria
– Reinstate/do not retaliate
Different Frameworks, Similar Challenges
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• Eligibility criteria
• Qualifying reasons
• Unpaid, job-protected leave
• Benefits continuation
• Reinstatement
• 12 workweeks (in a 12-month
period)—for medical only
• Block or intermittent/reduced
schedule leave
• No interference, no retaliation
• There is no undue hardship
FMLA = Protected Time
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• Americans with Disabilities Act and
its Amendments (ADA or ADAAA)
– This is for anyone—takes effect
before employment even begins
– It’s about employing and enabling
qualified employees to work
– Built on an interactive process
between employer and employee
– This is flexible
– Leave—with no set cap—is one
form of reasonable accommodation
Different Frameworks, Similar Challenges
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• The Americans with Disabilities Act
(and its amendments)
• Do not discriminate/retaliate
• Employers must reasonably
accommodate unless it poses an
undue hardship
• Individualized assessment and the
interactive process
• Takes effect before employment
even begins
• Confidentiality obligations
ADA Reminders
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1. The prohibitive piece – no discrimination
against those disabled, record of
disability, regarded as disabled
2. The affirmative piece – to reasonably
accommodate unless it creates an
undue hardship
ADA: What Has NOT Changed
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• Effective January 1, 2009
• Congress’s purpose to restore the
broad intent/coverage of the ADA
• Net result: much more likely that
employees qualify as “disabled” and
have rights under the ADA
• More focus on interactive process
What HAS Changed The ADA Amendments Act (ADAAA)
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• An employee’s own serious health condition
is one basis for leave under the FMLA
• If that serious health condition also
constitutes a disability under the ADA, that
employee may also be entitled to
accommodations
Remember: Employee Medical Conditions May
Trigger Both FMLA and ADA Obligations
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• Extensive case law under FMLA and ADA about what constitutes sufficient “notice”
• No magic words required
• Employee just has to provide enough information that employer knows a medical issue is interfering with a job requirement
– Simple statements like “I’m sick” = generally not enough
– Employees who miss multiple days of work for medical reasons = probably enough
– Employees who ask for modifications to their work arrangements and reference related medical issues = almost always enough
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News Flash! The Burden Remains on Employers
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• 29 C.F.R. § 825.300(b) Eligibility Notice: Employers
must notify employees of their eligibility for FMLA within
5 business days of employee’s request or employer
notice.
• Branham v. Delta Airlines, 184 F.Supp. 3d 1299
(D.Utah 2016): Employee’s statements insufficient
• Valdivia v. Township High School Dist., No. 16-C-
10333, 2017 WL 2114965 at **4-5 (N.D. Ill. May 15,
2017): Employee’s uncontrollable crying = constructive
notice
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News Flash! The Burden Remains on Employers
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• The FMLA Regulations permit forced designation of FMLA
– “The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of
the designation to the employee as provided in this section.” 29 C.F.R. § 825.300(d)(1)
– “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the
employer must notify the employee as provided in § 825.300(d).” 29 C.F.R. § 825.301(a)
– “Disputes. If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave,
it should be resolved through discussions between the employee and the employer. Such discussions and the
decision [by the employer] must be documented.” 29 C.F.R. § 825.301(c)
– “Retroactive Designation. If an employer does not designate leave as required by § 825.300, the employer may
retroactively designate leave as FMLA leave provided [no] harm or injury to the employee.” 29 C.F.R. §
825.301(d)
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“But the Employee Doesn’t Want FMLA”
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• Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014)
– “[A]n employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”
– Chilling effect on employers’ willingness to involuntarily designate leave as FMLA
– Skrynnikov v. FNMA, No. 11-609 (D.D.C. Jan. 3, 2017) (applying Escriba to reject employer’s argument that employee who asked to use 1 week of vacation to recover from “rib injury” permitted employer to designate the time as FMLA/DCFMLA leave against employee’s wishes, while stating that the argument “defies logic.”
• Still reason to be careful about involuntary designations:
– For FMLA-qualifying reasons unrelated to the employee’s own serious health condition, employee can reverse course about the reason s/he is taking time off
– For FMLA due to employee’s own serious health condition, involuntary retro designations can be risky: possibility of harm caused by notice delays that are the employer’s fault
– At least attempt to document agreement about questionable designations
Flipping the Script on Escriba:
“Involuntary” FMLA Leave Designations
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• Courts’ possible misapplication of Escriba v. Foster Poultry Farms,
Inc., 743 F.3d 1236 (9th Cir. 2014)
• Be sure to document the designation and give employees time to
object (but absent FMLA, time may not be protected)
• Be sure you are only forcing time off that is medically necessary
• Paid sick leave laws can complicate this
Cautionary Notes to Forced Designations
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• 29 C.F.R. § 825.122(c)(3): “Persons who are ‘in loco
parentis’ include those with day-to-day responsibilities to
care for and financially support a child, or, in the case of an
employee, who had such responsibility for the employee
when the employee was a child. A biological or legal
relationship is not necessary.” (emphasis added)
• In 2010, the DOL issued Administrator’s Interpretation No.
2010-3, which construed in loco parentis more broadly to
mean someone who has day-to-day responsibility to care
for a child or who financially supports a child.
We Better Be Asking the Right Questions Ex: FMLA and In Loco Parentis
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• The in loco parentis concept under FMLA—for our employee-parents,
or employee-children
• Coutard v. Municipal Credit Union,
848 F.3d 102 (2d Cir. 2017)
– Coutard admitted he simply requested FMLA leave to care for his
grandfather, who had been hospitalized. Did not mention that his
grandfather had raised him from the age of three.
– Employer: FMLA leave denied because “the statute does not apply
to grandparents.”
– District Court: SJ for employer—they weren’t on notice
– Second Circuit: Reversed. Employer had affirmative duty to ask
if the grandfather was really his “parent”
– What this case really tells us
We Better Be Asking the Right Questions Ex: FMLA and In Loco Parentis
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• Best Practice?
– Since neither a biological nor legal relationship is necessary, consider the following communication to employees who request FMLA leave to care for an individual who is not obviously a parent, spouse or child:
• “We have received notice that you may be in need of FMLA leave to care for an individual who does not appear to be your parent, spouse or child. If our understanding of your relationship with this individual is inaccurate, contact [INSERT] immediately. Also, the FMLA permits an eligible employee to take leave to care for: (1) an individual who stands in the place of the employee’s parent (or who did so when the employee was under age 18), or (2) an individual for whom the employee stands in the place of a parent. If you believe that standard may be applicable in your situation, contact [INSERT] immediately.”
The Broad Reach of In Loco Parentis Under FMLA
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What’s All the Fuss About Pregnancy All of a Sudden?
• Anecdotally, we are seeing lots of activity
• FMLA, ADA, PDA and state law protections
• What the EEOC has to say
– https://www.eeoc.gov/laws/guidance/pregnancy_guidance.
cfm (June 25, 2015)
• What the Supreme Court said in Young v. UPS
• What does this mean for you?
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• Why these policies passed discrimination muster for so long
• Current EEOC activity and the position they are taking (somewhat different from
the position articulated in the Agency’s Enforcement Guidance on this issue)
• How this can be a PDA problem (you’ve already seen this)
• How this can be an ADA problem—gutting your “not reasonable” or “undue
hardship” arguments?
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“Light Duty for Workers’ Comp Only”
Policies Under Attack
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• “In general, an employer may require that employees comply with the employer’s usual and customary policies for requesting leave, unless unusual circumstances prevent the employee from doing so.” DOL “The Employer’s Guide to the FMLA,” p. 14 (April 2016) (emphasis added); see also 29 C.F.R. §§ 825.302(d), 825.303(c)
– Great case law on “unusual circumstances”
• Examples include:
– Requiring employees to call a designated number. 29 CFR §§ 825.302(d), 825.303(c)
– Requiring employees to call a specified person. 29 CFR §§ 825.302(d), 825.303(c)
– Requiring employees to speak to a supervisor, rather than leave a message. See, e.g., Chappell v. Bilco Co., 675 F.3d 1110 (8th Cir. 2012)
– Requiring employees, even on unforeseeable intermittent FMLA, to timely notify management and request the time off as FMLA. Acker v. General Motors, No. 16-11174, 2017 WL 1323518 (5th Cir. Apr. 10, 2017)
– Much to DOL’s chagrin, dual reporting finally gets some support! Acker and others
Some Good News You Can Enforce Reasonable Call-In Procedures
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• Burdensome or even apparently reasonable procedures for original notice may not pass muster under FMLA or ADA
– See above Coutard case
– EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, No. 915.002 (10/17/02) (requests for accommodation do not need to be in writing)
– Courts are regularly rejecting arguments of employers that no accommodation was owed because the employee “didn’t do it right.”
• And…your policies can’t be ridiculous
– Boadi v. Center for Human Development, Inc., 2017 WL 886972 (D. Mass. Mar. 6, 2017) (ruling against the employer who terminated a mentally ill employee when her son called in on her behalf instead of her reporting the absence herself)
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Limits on Enforcement of Internal Procedures
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• Employers cannot have it both ways—are you letting employee’s “make up” their FMLA time? (consider light duty,
telecommuting, working outside of business hours)
• Employers and employees can agree—but then it’s not FMLA
• Cases recognize that “fielding occasional calls about one’s job” while on FMLA leave does not violate the FMLA, nor does
asking the employee to participate in an investigation. See, e.g., Krause v. Eihab Human Services, Inc., 2015 U.S. Dist.
LEXIS 101820 (E.D.N.Y. 2015)
• Courts distinguish between an employer’s intermittent, non-disruptive communications and requiring an employee to
produce substantive work product. Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149 (8th Cir. 2016)
• But employees cannot substantively work during FMLA!
– Carlin v. Geauga Sav. Bank, No. 1:11-CV-1418, 2015 WL 3767678 (N.D. Ohio June 16, 2015). Court denied
summary judgment for employer who asked employee to work from home and participate in phone calls during FMLA
“Working” During FMLA
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• 29 C.F.R. § 825.216(e): If an employer has a uniformly-applied policy governing
outside employment, that policy may continue to apply to an employee on FMLA
leave. An employer that does not have such a policy may not deny benefits to
which an employee is entitled under FMLA on this basis unless the FMLA leave
was fraudulently obtained.
• Ibewuike v. Johns Hopkins Hospital, WMN-15-1630, 2017 WL 2131842 at *4
(D. MD. May 17, 2017): plaintiff’s discharge for working another job while on
FMLA leave was not unlawful because it violated a company policy prohibiting
the taking of paid employment while on a leave of absence without first obtaining
management’s approval.
Policies Prohibiting Moonlighting
What You Suspect, But Can’t Yet Prove...
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• Employees have a statutory obligation to make a reasonable effort to schedule intermittent leave for planned medical
treatment so as not to unduly disrupt the employer’s operations. 29 C.F.R. § 825.203 (emphasis added)
• The irony of an employer’s transfer rights under the FMLA (we know, we know, it makes no sense...)
– Employers may transfer employees who are using intermittent leave for planned medical treatment to positions that
better accommodate their need for intermittent leave. 29 C.F.R. § 825.204
– Employer groups came out in droves before the 2009 changes took effect—please let us transfer people for
unforeseeable/unscheduled intermittent leaves
– DOL says NOPE—reading the statute narrowly and precisely, and also defining “planned medical treatment” narrowly
– Transfers are also permitted when employers voluntarily permit intermittent or reduced schedule leave for bonding
(not much solace here...)
Intermittent Leave Hassles Transfers Under the FMLA
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• No prohibition on transfer as reasonable accommodation (subject to the standard discrimination analysis)
• It’s generally okay to arrive at a new deal—including job duties, compensation, hours, etc. if options in current position have been exhausted
– But don’t let the FMLA issue pass you by (ex: employee asks for a modified schedule, but you cannot accommodate—what now?)
• Reassignment
– Affirmative assistance required?
– Competitive reassignment permitted?
– EEOC’s position
– Fifth Circuit’s position
– Other circuits?
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Transfer and Reassignment Under the ADA
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Accommodations to Get People To Work in the First Place What the Courts are Saying
• Does it matter that this isn’t assisting them in actually performing an essential function of their job? Many courts say “no”
• Affirmatively assisting in the commute likely not required (though at least one court disagreed and required a transfer to a location closer to employee’s home)
• Parking requests should be considered/evaluated carefully—usually expected if doable
• Schedule modifications associated with the commute—cases are all over the place—proceed with caution
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• Defining the issue
• How are you treating absences that we should have captured as FMLA, but missed?
• Absences protected under ADA?
– 2011: A record-breaking $20M EEOC settlement involving a major cellular
provider for rigid application of an attendance points policy (largest ADA
settlement in EEOC history)
– Started a trend of EEOC enforcement in this arena that continues today
– Multiple class action lawsuits on this issue ongoing
• What this all means for you
Attendance-Based Discipline and Terminations
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But Isn’t Attendance an Essential
Function of Every Job?
• Sadly, no
• Two potential legal arguments/issues for employers
– Whether the employee is qualified in the first place
– Whether the accommodation is reasonable/poses an undue hardship
• General Theme = some judicial deference to the employer’s business judgment
• But there is unfavorable case law, and technology seems to be making this worse
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• So you tell me I may have to provide
leave as an accommodation... but
when is enough FINALLY enough?
Question
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a) Never
b) When I have forgotten what said employee
looks like
c) After three reasonable extensions of time
Answer:
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© Littler Mendelson, P.C. | 2017 Proprietary and Confidential
• ADA leave is THE primary issue when FMLA
leave is exceeded or not available
• Leave from work is one form of reasonable
accommodation (this is not new)
• There is no set period of time that will always
be enough because the ADA requires an
individualized assessment of the employee’s
circumstances and requested leave
• Clearly defined lines are frowned upon by the
EEOC—and no level of generosity gets you a
free pass
(The Real Answer): Let’s Start With the Bad News
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• ADA leave is the primary issue when FMLA leave is exceeded or not available
• Leave from work is one form of reasonable accommodation (this is not new—but huge area of enforcement now)
• No set period of time will always be enough—the ADA requires individualized assessment of the employee’s circumstances and the requested leave
• Clearly-defined lines are frowned upon by the EEOC—and no level of generosity gets you a free pass
• See the EEOC’s Recent “Resource Document,” Employer-Provided Leave and the ADA, issued May 9, 2016, available at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm
ADA/FMLA Interplay Leave Under the ADA When FMLA Does Not Apply
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• Echevarria v. AstraZeneca Pharmaceutical LP, No. 15-2232 (1st Cir. May 2, 2017) – request for additional 12 months of leave after almost 5 months of leave deemed not “facially reasonable.”
• Minter v. D.C., 809 F.3d 66 (D.C. Cir. 2015) – good “enough is enough” case citing EEOC’s 2002 Enforcement Guidance re: six months is more than a “reasonable amount of time” for an employer to retain a nonperforming worker
• Severson v. Heartland Woodcraft, Inc., 2015 U.S. Dist. LEXIS 153872 (E.D. Wis. Nov. 12, 2015) – employee who needed two more months after FMLA leave to recover from back surgery was not able to perform essential functions of his job
• Robert v. Board of County Commissioners, 691 F.3d 1211 (10th Cir. 2012) – a reasonable leave of absence is one where the estimated date of return is in the near future
The Courts Show Some Sympathy
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• Hwang v. Kansas St. Univ., 753 F.3d 1159 (10th Cir.
2014) (emphasis added)
“By her own admission, [plaintiff] couldn't work at any
point or in any manner for a period spanning more than
six months. It perhaps goes without saying that an
employee who isn't capable of working for so long isn't an
employee capable of performing a job's essential
functions — and that requiring an employer to keep a job
open for so long doesn't qualify as a reasonable
accommodation. After all, reasonable accommodations
— typically things like adding ramps or allowing more
flexible working hours — are all about enabling
employees to work, not to not work.”
Pushing Back on Extended Leaves
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• “[I]t's difficult to conceive how an employee's
absence for six months — an absence in
which she could not work from home, part-
time, or in any way in any place — could be
consistent with discharging the essential
functions of most any job in the national
economy today. Even if it were, it is difficult to
conceive when requiring so much latitude
from an employer might qualify as a
reasonable accommodation.”
More from Hwang…
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• FMLA: No undue hardship, no operational argument, no flexibility—if an
employee qualifies for the leave, he/she gets it
• ADA:
– Leave is just one form of reasonable accommodation
– Other accommodations may be effective—and employees don’t get to
just dictate their preferred accommodation
– The employee has asked for leave—but will other accommodations
enable him/her to return (ex: modified schedule, modifying non-essential
job duties, etc.)?
So is the ADA Just More FMLA?
Pushing Back When FMLA is Over
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• Reassign essential job duties
• Create new jobs
• Provide indefinite leaves of absence
• Change an employee’s supervisor
• Bump another employee from his/her position
• Reduce conduct or performance expectations when the employee is at work
• Furnish items for an accommodation primarily for the employee’s personal use
(hearing aids, glasses, service animals, etc.)
• Excuse misconduct, even if caused by the disability
• Maintain equivalent pay if assigned to a different job
Not EVERYTHING is Reasonable...
Employers Still Generally Do Not Have To:
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• Temporal proximity between FMLA leave and disciplinary action does not always
lead to a successful legal claim.
• Germanowski v. Harris, 854 F.3d 68 (1st Cir. 2017):
– Plaintiff was discharged 3 days after she called in stating she would be out
sick for the week and that she was scheduled to see her doctor.
– Plaintiff did not provide notice that she was seeking FMLA when she called in
to report her absence.
– Ruling: The court dismissed plaintiff’s complaint finding that she failed to set
forth a plausible theory of causation connecting her attempt to exercise FMLA
rights and her termination. Her claim was further undercut by the fact that the
employer consistently accommodated her illness-related absences when she
was unable to work in the past.
Timing Isn’t Everything
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• Numerous successful defenses of terminations based on an “honest belief” of leave abuse
• Sharif v. United Airlines, Inc., 841 F.3d 199 (4th Cir. 2016):
– Employee fraudulently used intermittent FMLA leave to cover his shift, claiming anxiety made
him unable to work. Investigation revealed that he had not made arrangements to travel home
day of shift.
– Ruling: The court affirmed summary judgment for the employer under McDonnell Douglas,
explaining: “it seems perfectly logical for UA to conclude that Sharif did not want to interrupt his
Cape Town vacation to come back for one day of work.”
• Rowe v. United Airlines, Inc., 608 Fed. Appx. 596 (10th Cir. 2015)
– Flight attendant terminated when employer’s investigation revealed that with regard to a day on
which she claimed a migraine and was unable to fly, she never even attempted to purchase a
timely return flight
“Honest Belief”—The Hits Keep On Comin’
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• Capps v. Mondelez Glob., LLC, 847 F.3d 144 (3d Cir. 2017)
– Employee takes intermittent FMLA, goes to a bar at end of day, gets drunk and gets arrested for
DUI on the way home. Terminated for misuse of FMLA, relying on criminal court docket
indicating that arrest date and court dates coincided with reported FMLA days
– Fantastic facts—wife out of town, he couldn’t cook, needed food, went to bar, blood alcohol at
arrest was .339
• Tibbs v. Admin. Office of the Ill. Courts, 860 F.3d 502 (7th Cir. 2017):
– Plaintiff was suspended the day she returned from FMLA leave for several incidents of
misconduct from the previous year and was later discharged after refusing to attend a
disciplinary meeting.
– Ruling: The court affirmed summary judgment for the employer on plaintiff’s FMLA retaliation
claim. It explained that plaintiff has the burden of establishing that the employer’s proffered
reason for her discharge “w[as] or could reasonably be found honest” and “where an employer
has multiple reasons for discharging an employee, the employee “faces a greater challenge.”
“Honest Belief”—The Hits Keep On Comin’
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• Jones v. Gulf Coast Health Care of Delaware LLC, No. 16-11142, 2017
WL 1396165 (11th Cir. Apr. 19, 2017). Two visits to Busch Gardens and a
trip to St. Martin (pictures on Facebook) not enough when leave is for
recovery from rotator cuff surgery
• Brady v. Bath Iron Works Corp., No. 2:16-CV-4-NT, 2016 WL 3029948
(D. Me. May 25, 2016). Drinking a beer on your way home for an
intermittent FMLA day due to your anxiety and depression, which is
triggered by your work environment, was not “a situation where an
employee has been caught ‘red-handed’ engaging in an activity clearly
inconsistent with the intended purpose of the leave.”
• The “vacation cases” (e.g., employee on mental health leave posts
pictures from her cruise)
But Don’t Get Cocky About Your “Honest Belief...”
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• The conduct has to truly be inconsistent with the reason for leave
• Conduct a proper investigation
• Confrontation is key
• Don’t play doctor
Tips to Remember Before Acting on Suspected Abuse
VIDEO
A Reasonable Request?
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This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute.
Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of any decision or principle of law should be verified by counsel.
Thank You!
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