On 1/27/17, the 11th Circuit Court of Appeals overturned summary judgment for an employer on FMLA interference and retaliation claims. This decision provides guidance to employers about actions and comments that can result in viable claims for FMLA interference and/or retaliation. The case is Diamond v. Hospice of Florida Keys, Inc. d/b/a Visiting Nurse Association of the Florida Keys (11th Cir. 1/27/17),
In Diamond, the employee was a licensed clinical social worker for a hospice provider. The employee (somewhat ironically in my opinion) needed intermittent leave to care for her elderly parents. Hospice approved a number of requests for intermittent leave between June 2013 and February 2014 without incident. In March 2014, the employee learned that her mother was seriously ill and she requested intermittent leave for a 5 day period, which was approved by the then head of HR. When she returned to work, the CEO warned her that if she worked for any other company she would already have been terminated. A new head of HR sent the employee a memo requesting documentation of her need to take leave with less than 30 days’ notice, such as travel receipts or health-care provider receipts, and told the employee that this type of documentation would be required in the future any time she needed to take leave with less than 30 days’ advance notice.
Negative comments about FMLA-covered absences. The Hospice also had a policy of sending memos to employees when their PTO balances were low warning them that exhaustion of PTO, along with absences, could adversely affect employment. The memos did not make clear that employees would not be disciplined for taking unpaid FMLA leave. At some point, the hospice stopped issuing these memos, and at her deposition the (new) head of HR acknowledged that an employee who received such a memo could be discouraged from taking FMLA leave.
In addition, after one of the employee’s short notice intermittent leaves, the head of HR sent an email to the employee advising her that her “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.” The email further stated that the hospice understood that family emergencies arise, and that FMLA is designed to help with that but that “there are requirements for approval of FMLA without notice” including the documentation the hospice had requested. At some point, the head of HR also told the employee that she “might want to conserve her remaining FMLA leave” because it was running low. The employee presented evidence that these actions and comments discouraged her from using FMLA leave on a number of days and, in fact, prompted her to cancel one of her scheduled FMLA absences and report to work.
The Hospice terminated the employee in early May 2014 for allegedly poor performance, listing several examples including failure to complete care plans on a timely basis and leaving the building on the day of a state survey without authorization in violation of hospice policy.
Court’s reasoning –FMLA Interference claim. To prove FMLA interference, an employee must show that she has been prejudiced by an FMLA violation. Here, the court reasoned that the employee had presented sufficient evidence to defeat summary judgment, commenting that a jury could find that Hospice interfered with the employee’s FMLA rights by discouraging her from taking FMLA leave in order to care for her seriously ill parents. The court that said that “the clearest example” of this was the admonition that her continued unpaid time away was compromising the quality of care that the hospice was able to provide. The court also concluded that the request for receipts could have – and in fact did – dissuade the employee from taking FMLA leave.
The court noted that the FMLA and accompanying regulations permit employers to obtain a medical certification when an employee takes leave for a covered family member with a serious medical condition but that the Hospice had asked for additional documentation purportedly on the ground that it wanted “proof” that 30 days’ advance notice was not possible. The court said that the requested documentation (e.g. travel receipts) shed no light on whether or not advance notice was possible. The court also said that while the FMLA permits employers to have “usual and customer notice and procedural requirements for requesting leave” there was no evidence that the Hospice had a policy and that, to the contrary, the requirement seemed to have been created on an ad hoc basis just for her. The court noted that even if it assumed that an employer could permissibly request additional documentation to verify whether an employee’s absence was actually for FMLA-approved purposes, there was no evidence in the record to suggest that the Hospice had reason to doubt the employee’s veracity in this case.
The FMLA Retaliation Claim. The court also reversed the granting of summary judgment on the FMLA retaliation claim, commenting that the employee had “easily” established a prima facie case of retaliation. The court pointed to (1) the proximity in time between her FMLA leave and the termination, (2)the fact that she had more difficulty getting FMLA leave approved once the new head of HR took over, (3) the negative comments made to her by this new head of HR regarding her absences, and (4) the weakness of the evidence concerning the alleged performance issues.
Lessons for employers? Be careful what you say. It is not unusual for managers to complain that FMLA absences are disruptive and harmful to production and morale. They should be cautioned and provided training about the legal risks of doing so. Also, be careful what you do. Managers and HR frequently are suspicious about whether or not employees’ absences are truly FMLA related. There is a temptation to want “proof” beyond the medical certification. Employers should tread carefully in these waters because it can lead to an interference claim. And, review your policies. If you want to have reasonable call-in requirements or other requirements related to notification of absences, these policies should be clearly spelled out in writing, communicated to the employees and enforced consistently.