By Martha J. Cardi, Reed Group Chief Compliance Officer
Handling FMLA absences is a balancing act . . . don’t call the employee on leave too often, don’t call too seldom (or neglect to return calls).
Recently we reported on the employer’s right to require an employee to check in periodically during FMLA leave (read here). In a side note, we mentioned that contacting the employee on FMLA leave too often can create an interference claim (see box, “The Other Side of the Coin”).
Now a federal court has ruled that a supervisor’s failure to return an employee’s calls during leave can support an FMLA retaliation. So here is how it appears to add up:
- Too many calls + employee stress = FMLA interference
- Too few calls + discipline or termination = FMLA retaliation
How does an employer get it “just right”?
|We recommend that employers:
See further guidance below after reading about an employer whose supervisor didn’t get it just right.
The Employee’s Leave. Kathleen Hofferica was employed by St. Mary Medical Center when she became ill. In April 2008 she applied and was approved for intermittent FMLA leave through February 2009. In September 2008 Hofferica’s physician informed her that she needed to undergo a series of surgeries as treatment for her condition. She commenced a continuous leave and anticipated returning to work on November 6, 2008. During her leave Hofferica or her husband called Hofferica’s supervisor each week to provide updates on her progress and her anticipated RTW date. Hofferica claimed that the supervisor often failed to return her calls. In particular, Hofferica claims that:
- She called her supervisor on November 4 to explain that her physician might postpone her RTW date. The supervisor never returned the call.
- She called on November 6 to inform her supervisor that Hofferica’s physician had cleared her to return to work on November 13, and to request “a brief extension of her medical leave until said date as a reasonable accommodation for her disability”. The supervisor did not return this call.
Hofferica received a letter from St. Mary dated November 7, stating that she had been terminated because her FMLA leave of absence had expired and she had not returned to work.
What happened next? Of course, Hofferica sued St. Mary, alleging FMLA interference and retaliation. The interference claims were dismissed, but the retaliation claim survived. The court held that:
- The supervisor’s failure to return Hofferica’s calls reflected an antagonistic attitude toward the employee and her use of FMLA; and
- This antagonism could lead a jury to conclude that Hofferica was fired in retaliation for her leave usage.
As a result, St. Mary has a choice – pay Hofferica to settle, or pay their attorneys to proceed to trial.
Hofferica v. St. Mary Medical Center, No. 10-6026 (E.D.Pa. September 20, 2011).
Lessons for employers.
- Set a Procedure. Establish a consistent and compliant procedure for communications with an employee during an FMLA leave. Not too much, not too little. The employer is permitted under FMLA to require the employee to report in periodically during the leave of absence. It is also alright for the employer to check in with the employee if he or she hasn’t called. The appropriate frequency for communications with the employee will depend on the length of the leave, its purpose, and the information previously provided by the employee. For more tips on call-in policies, see “What Employers Should Do” (here).
- Train Supervisors. Supervisors are not expected to be FMLA experts. However, if they don’t have a general understanding of employee / employer rights and obligations under the FMLA – including communications procedures – they are likely to express intolerance of or frustration about a subordinate’s use of FMLA time off or call and disturb the employee during the leave. Such an attitude might discourage an employee from asking for and/or using as much FMLA time as he or she needs and is entitled to. This “chilling effect” can be enough to create a claim for interference. (See “The Other Side of the Coin”, linked above.)
- Bonus lesson! Although the employee in the Hofferica case did not assert a claim under the Americans with Disabilities Act, she could have done so. Even if an employee exhausts her FMLA leave, an extended leave of absence might be a reasonable accommodation for an employee with a disability. Hofferica set up a possible claim under the ADA by requesting in her last message to her supervisor, “a brief extension of her medical leave until said date as a reasonable accommodation for her disability”. Why Hofferica did not assert this claim in the lawsuit is unknown; it could have provided the employer with even more to worry about. See our prior discussions of this topic (ADA Lawsuits on the Rise here and The EEOC Beat Goes On here).
- Train HR. Train your HR managers to follow appropriate contact and communication protocols in accordance with the procedure you have established. They need to know when and how to be proactive in communicating with employees on leave and when to back off.
Sometimes it helps to have outside assistance if you are not sure you are handling communications as well as possible. If Reed Group is administering your FMLA leaves we manage communications with employees in compliance with the FMLA while taking advantage of all rights the FMLA provides to employers. Call 1-866-218-4650 if you would like to explore this option with Reed Group.