A recent decision by a federal judge in New Jersey serves as a startling reminder to employers of how easy it can be to run afoul of not only the FMLA but state leave laws as well. The employee took a medical leave under the FMLA for her own health condition. While she was out on leave, her adult son was hospitalized as a result of a serious car accident. She immediately advised her employer she needed additional time to care for him. The employer did not inform the employee that under the New Jersey FMLA she had the right to take another consecutive period of 12 weeks leave (after her FMLA leave for her own health condition) to care for her son. Further, at depositions in the case, the employer said that her lengthy leave was inconvenient and burdensome and that other employees resented it. The court in Hall-Dingle v. Geodis Wilson USA Inc. (D. N.J. 3/7/17) denied the employer’s summary judgment on her claims under both the FMLA and the NJFMLA.
NJFMLA: Additional rights beyond the FMLA. The NJFMLA provides that employees may take off up to 12 weeks in a 24 month period to care for a seriously ill family member or to bond with a newborn child. However, it does not authorize leave for one’s own health care condition. The NJFMLA provides that if an employee goes on a NJFMLA leave that is also covered by another leave law, the two leaves run concurrently but that if the first leave is for a reason that is not covered under the NJFMLA the second, NJFMLA protected leave will run consecutively. Here, the employee took her full 16 weeks of medical leave for her own health condition and exhausted her annual FMLA leave allotment. The second period of leave she needed to care for her son would run consecutively under the NJFMLA.
Employer & Employee communications about the leave. The employee advised the employer by email that she needed more leave to care for her son after his “deadly car accident.” The employer did not respond to the email. When she received no response, the employee called and left two voice mails. Still, no one from the employer responded. The employee then sent another email advising that she expected to return to work in about in about 10 days after her son had wires removed from his jaw.
About one month after the accident, the employer sent a letter telling the employee that she needed to provide a medical certification about her son’s serious health condition but was silent about whether she could return to work. The employee responded with a phone call, voicemail, and an email trying to find out whether or not she could return to work. HR responded and told her that she needed to “urgently” provide the medical certification and she should stop trying to contact the branch where she worked until she heard back from HR. The employee ultimately faxed a newspaper article about her son’s accident and medical bills. The employer told her that the document submitted was not a medical certification and that she needed to provide a medical certification. The employee immediately responded and said she did not have a medical document and that all that she had was $70,000 worth of medical bills. She said she did not know what medical certification the employer wanted and that her son left the hospital with a broken jaw, bruised chest, knee, hip, and ankle and on crutches under pain medication.
It was only at this time that the employer finally sent the employee a medical certification. In the medical certification, the employer inserted the a reference to the NJFMLA but did not describe or advise the employee of her rights under the NJFMLA. The employee sent back a partially completed form in which she filled out the employee section. She did not have the physician fill out the medical section but did send three doctors’ notes, one of which indicated that her son was brought to the hospital via helicopter for injuries sustained in a motor vehicle accident and that he needed to see an oral maxilla-facial surgeon within two weeks. The employer terminated the employee.
NJFMLA interference. The court concluded that there was sufficient evidence of NJFMLA interference to defeat the employer’s motion for summary judgment, including that the employer failed to provide adequate notice of the employee’s rights under the NJFMLA. The employer argued that it had complied with the notice requirements because its employee handbook described the NJFMLA rights. The court disagreed, noting that the employee did not have access to the handbook (which was posted on the Company’s intranet) while she was on medical leave. The court also concluded that the employer had not properly advised the employee of the deficiency in her medical certification and given her 7 days to cure the deficiency. While the NJFMLA does not contain the same right to cure language as the FMLA, the court noted that the employee handbook specifically stated with regard to the NJFMLA that the employer would provide notice of deficiencies and provide 7 days to cure them.
FMLA & NJFMLA Retaliation. The court noted that a retaliatory motive can be inferred from both temporal proximity and from “a pattern of antagonism” following a job-protected leave. Here, the court concluded that the employee had presented sufficient evidence of hostility including (1) a letter characterizing her initial absence as being “unjustified” and that her work needed to be redistributed even though the employee had advised the employer that she would be submitting additional medical documentation. The court concluded that a jury could find that these comments revealed that the employer felt frustration about her absences and was developing antagonism toward her. The court also said that the HR manager’s testimony in his deposition supported an inference of antagonism because he said that the extended leave started to pose some hardship for the company, that they needed to restructure the department because of it, and that other people were “picking up the slack of the work.” The HR Benefits representative also testified that she was sure that other employees were disgruntled that they had to take on additional responsibilities and that the “at the end of the day it’s the business and the branch that’s suffering.”
Lessons for Employers. This case has a number of great lessons. First, don’t forget about state leave laws. A number of states have leave laws are more generous than the FMLA. (For example, Connecticut allows 16 weeks (not 12) of leave for FMLA-protected reasons). Make sure that you know the laws of the applicable jurisdiction and that you comply with them, including their notice requirements. Second, make sure your handbook does not grant employees rights they do not have under federal or state law. Here, the handbook included a “cure” provision for the NJFMLA even though the statute itself contains no such right. Third, if your employee calls you to report a serious personal or medical issue, call the employee back! The employer here did not show much empathy or concern and this seemed to influence the court’s ruling. Fourth, do not grumble about how inconvenient FMLA absences are or about how other employees are overly burdened or resentful, or about how such absences cause harm to the business. These types of messages will be used as ammunition to provide discriminatory and retaliatory intent.