Even once in awhile an employer has handled an FMLA situation so effectively, you just want to shout out, “You Go Girl!” . . . or let out a fist pump (like you just sank a 70-foot birdie) . . . or initiate a wild chest bump in the hallway with a colleague (after you just landed that new client).
This is one of those cases.
Employers often struggle with handling an internal workplace investigation or issuing discipline where the employee in question has played the good ‘ol FMLA card just as you are about to investigate misconduct or issue discipline. This story below proves that the FMLA cannot be used as a shield to ward off legitimate discipline.
Andrew was a middle school teacher who somehow was involved in an incident with a student in a school hallway. The student claimed that Andrew grabbed her by the arms, shook her, and pinned her against a wall. Andrew, of course, had a different story. After a state-required child protective services investigation, the state cleared him of any charges. However, per school district policy, the school board conducted its own investigation (at the same time) focusing on whether Andrew had violated any school policy during his interaction with the student.
During the investigation, Andrew took FMLA leave because of reported stress, anxiety and high blood pressure. He returned to work sporadically over the next couple of months, but had panic attacks at work, apparently after being “berated” by the school principal. While Andrew was on leave, the school ordered him to report to work on one occasion to participate in the ongoing board investigation and on one other day to participate in a disciplinary conference. In that conference, he was issued a written reprimand for “engaging in physical contact by using a technique that escalated a situation that could have been handled differently.”
Before eventually returning to teach, Andrew submitted a doctor’s note requesting assignment to a different school in the district because returning to the same school could spur “panic attacks and other manifestations of his illness.” Per the request, the school district assigned Andrew to new school and returned him to work (after he had more than exhausted his 12 weeks of FMLA leave).
All good, right?
Andrew sued the district. Whaaat!?!
Andrew claimed the school district interfered with his FMLA leave when it required him to : 1) report to work to participate in the internal investigation; 2) attend appointments with other doctors; and 3) return to a different school that included children with behavioral issues.
The trial court (and appellate court) both smelled a rat, and they quickly dismissed Andrew’s FMLA claims. You can read the court decision here, but I weave the court’s reasoning into my insights below. Adams v. Anne Arundel County Public Schools
Insights for Employers
This decision provides a few golden nuggets for employers’ FMLA administration. Let’s discuss:
1. Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave. This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as he did here) that the employer took action on the heels of an employee’s request for FMLA leave.
Note the court’s words here: “There is no absolute right to restoration to a prior employment decision.” In other words, carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave. In fact, employers arguably have a duty to conduct a prompt investigation into allegations of this kind. As the court pointed out, employers (and schools in particular) have an obligation to investigate and address serious allegations of employee misconduct “or else face accusations and lawsuits for not looking promptly into allegations of improper” conduct of its employees.
2. You can indeed ask an employee during his FMLA leave to report to work to participate in an internal investigation. Within reason, of course. Heed the court’s guidance here:
In certain circumstances, required meetings may unlawfully interrupt an employee’s leave. Here, however, the one-time conference was a legitimate piece of an ongoing investigation into the January 19 incident between Adams and the student.
. . . the record here points to a standard procedure during which due process was accorded to Adams every step along the way.
A common sense, thoughtful approach by the court. In other words, if an employer follows its standard internal investigation procedures (which means you should have these procedures in place!) and affords a level of due process during the investigation to the employee, a court will endorse your process. I like it.
In situations like these, however, I recommend that employers not count the investigatory meeting with the employee against his FMLA allotment, since he reported to work on this occasion.
3. A closer call here is that the school district apparently required the employee to attend three different medical appointments as part of the FMLA’s second opinion process. Interesting angle. We often find in unionized environments that employers have the right (under the collective bargaining agreement) to send employees off for fitness-for-duty exams separate and apart from the FMLA process. As the court did here, these provisions generally are upheld. But let the employer beware — I would advise against multiple “second” opinions unless you are in close contact with your legal counsel.
In the meantime, my hat’s off to the Anne Arundel County School District for a job well done. You gave the rest of us employers a good model to follow.