Suits In The WorkPlace

ADA/FMLA Plaintiff Cannot Double-Dip

An automobile mechanic for the county of Fairfax, Virginia cannot ignore his FMLA-related absences when he claimed that he could perform the essential job function of regular attendance.  Payne v. Fairfax County, 1:05cv1446 (E.D. Va. 11/1/06).

Payne, an auto mechanic, was diagnosed with panic disorder, irritable bowel syndrome, and Epstein-Barr disease.  For three straight years, he used all or nearly all of his twelve weeks of leave under the Family and Medical Leave Act.  When the county refused to grant him additional leave in the final year, he “retired” but then sued under the FMLA, ADA and local employment ordinances.

The issue of first impression for the court (and apparently undecided by any other court as well) arose under the ADA.  The court first analyzed whether Payne was a “qualified individual with a disability” under the ADA, and turned to the issue of his attendance, noting that “an employee who cannot meet the attendance requirements of his job cannot perform the essential functions of his job, and therefore, cannot be a ‘qualified individual’ under the Americans with Disabilities Act.”

As mentioned, Payne had regularly and consistently missed time from his job because of his medical conditions.  Much or all of that time, however, had been covered under the FMLA.  Payne argued, therefore, that this time should not “count against him” with respect to his ADA claim.  The court acknowledged that the FMLA did in fact protect employees from adverse actions because of the taking of protected leave:  the FMLA prohibits any discrimination or retaliation against an employee taking FMLA leave and further requires that leave taken pursuant to the FMLA "shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced." 29 U.S.C. § 2614(a)(2)-(3).

However, the court refused to carry this protection as far as Payne wanted.  Citing DOL regulations implementing the FMLA, it held that, since the FMLA was not intended to modify the ADA in any way, “the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a ‘qualified individual’ within the meaning of the ADA. To rule otherwise would be a judicial expansion of a Plaintiff's rights under the ADA and run directly contrary to § 825.702.”

This is an important ruling, especially in light of the frequent intersection between FMLA and ADA issues relating to employee leaves of absence.  Employees like Payne cannot double dip by claiming that they should be able to invoke FMLA protections, while simultaneously avoiding the standards for qualifying under the ADA.  Employers should be particularly aware of all applicable statutes during leave situations, not just the obvious ones.

Employers - This is What You're Up Against

If at first you don't succeed, lie lie again

Here's a set of facts that could leave you sick to your stomach: Employee checks her leave balance and determines she has almost no sick time left. Soon thereafter, she shows up for work at 6:30 A.M. and leaves within 2 hours. The next day, she goes to physician assistant about her gastroesophigal reflux disease to get the absence the day before certified as a "chronic condition" and therefore an FMLA-qualified absence. Physician assistant says no, employee goes over her leave time, and the employer terminates her in accordance with both its policy and the collective bargaining agreement.

Part Deux:  Employee goes to a physician to try and get the absence covered under FMLA. The physician also says no.

Finally, going for the medical trifecta, the employee goes to a nurse practitioner, who gives the employee a note that says "Reports missed day of work 7/31/02 due to stomach pain seen in office today with epigastric pain." The nurse practitioner then completes the FMLA form certifying the condition as "chronic". Employee gives the form to the union rep, who gives it to the employer, who sticks to its guns.

Employee sues for FMLA discrimination. Employer moves for summary judgment. The result? The federal district court for the Northern District of Iowa denied summary judgment. In an unpublished opinion, the court held the Employer's request for medical certification and whether or not the Employer gave Employee a chance to fix any problem with that certification were triable issues of fact. It also held that the law does not restrict the employee's ability to seek second (and in this case third) opinions with regard to certifications, so long as the certification is made within the DOL-required 15 day time period. Makes us wonder how many medical appointments one could schedule for one day....

Cook v. Electrolux Home Products Inc., N.D. Iowa, No. 04-3063-MWB, unpublished opinion, 11/28/05.

Ball of Confusion

A recent Sixth Circuit case shows, again, how careful an employer must be when monitoring Family and Medical Leave Act absences.  This is a long story, but stay with me. 

            In Wilkerson v. Auto Zone, Inc., the Sixth Circuit ruled that the lack of coordination between employer managers, which resulted in a failure to notify the employee that her FMLA leave had expired, meant that the employer could be found guilty of interfering with FMLA rights when it fired the absent employee, even if her FMLA rights expired two weeks before she returned to work.

            Wilkerson went out on maternity leave and claimed that she was told she would have six weeks of FMLA leave before the baby's birth, and six weeks after.  But because Wilkerson had used intermittent leave prior to leaving work to give birth, she actually ran out of FMLA leave four weeks following the birth of the baby, rather than six.  Auto Zone failed to inform her of this fact, however.  Further complicating the issue, Wilkerson tested positive for a drug masking agent on a routine urinalysis that was reported to the company shortly after she left on FMLA leave.  Although it was the company's normal practice to advise an employee of a positive drug test, Auto Zone did not so advise Wilkerson, and instead determined that she would be terminated because of the failed drug test when she returned from maternity leave. 

            Before she returned, Wilkerson called Auto Zone regarding a medical release she needed to return to work (inexplicably, at the company's request).  Also inexplicably, the human resources official monitoring Wilkerson's absence expected her to return to work after five weeks of FMLA leave.  When Wilkerson failed to show up after five weeks, the HR official notified company management that Wilkerson had not returned to work when expected.

            Wilkerson ultimately showed up after six weeks of leave and was terminated for failing to report for work or call in her absence after five weeks.  She was not advised that she was terminated for the positive drug test.

            Wilkerson sued, claiming that Auto Zone denied her right to reinstatement and retaliating against her for taking FMLA leave.  A jury found in her favor, awarding $56,000 in damages. 

            As you might expect from such a complicated fact pattern, the Sixth Circuit had several things to sort out.  The initial issue is whether Wilkerson was entitled to reinstatement after six weeks of leave, even though her FMLA entitlement expired after only four weeks.  The Sixth Circuit held that an employer must notify an employee in writing when leave is designated as FMLA leave, and if the employer fails to do so, the leave may not be counted against the employee's 12-week allotment.  The court found that this holding was not in conflict with the Supreme Court's Ragsdale decision, even though it effectively awards additional FMLA leave above the statutory entitlement.  The Sixth Circuit found that because the employee reasonably believed that she was entitled to the additional two weeks of leave, she was prejudiced by the employer's failure to notify her of exactly when the FMLA entitlement would run out.

            Similarly, the court rejected the company's claim that Wilkerson's leave entitlement ended when her doctor released her to return to work after five weeks of leave because Wilkerson was unaware of the company's receipt of the release, despite her calls to verify its receipt.  As for the jury's rejection of the company's claim that it would have fired Wilkerson anyway because of her drug test results, the court noted that the company's failure to notify Wilkerson of the results, as it would normally, along with its formal notice to Wilkerson that she was being fired for attendance, provided ample basis for the jury to reject the company's evidence. 

            This case is almost a model for how not to manage an FMLA claim.  The company's failure to get its story straight regarding why it fired the plaintiff (there were actually three separate reasons for the company's termination decision), failure to properly monitor exactly how much FMLA time the plaintiff had, failure to provide her with notice as to when her FMLA leave would end, and failure to notify her of her failed drug test, provided a basis for the jury to disbelieve all of the company's reasons.  The Sixth Circuit simply affirmed the decision.  The lesson for employers?  Carefully monitor and communicate consistently with anyone out on FMLA leave; have a clear understanding on everyone's part as to exactly how much leave is available and when it will end; when you have more than one reason for terminating an employee, communicate all viable reasons at the time of termination.

Taking a Bite out of the FMLA

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