That is the question a federal district court in Arkansas recently held would have to be resolved by a jury, and one that should concern any employer seeking to control the abuse of FMLA leave. Terwilliger v Howard Mem Hosp.pdf

The Facts

Regina Terwilliger worked for Howard Memorial Hospital for approximately two years, first in the kitchen and then in housekeeping. In November 2008, Terwilliger submitted a request for FMLA leave because she needed back surgery. Her request was approved and she underwent surgery on January 29, 2009. She was released to return to work without restrictions on February 12, 2009 and returned to work on February 16, 2009, having used eleven weeks of FMLA leave.

During her recovery, Kim Howard, Terwilliger's immediate supervisor, contacted Terwilliger weekly to inquire when she was going to return to work. According to Terwilliger, during one call, she asked Howard if her job was in jeopardy, and Howard replied that she should return to work as soon as possible. Terwilliger asserted that she felt Howard was pressuring her to return to work. She also testified that Gayla Lacefield, the hospital's HR director, discouraged her from using FMLA leave by telling Terwilliger not to tell anyone that she had informed Terwilliger of her FMLA rights.

Before Terwilliger's FMLA leave, several hospital employees had reported that money was stolen from their desks or lockers. No money was stolen while Terwilliger was off of work. In December 2009, hospital management placed a camera on the desk of Angie Hansen, one of the employees who reported stolen money. In March 2009, the camera captured another housekeeping employee opening Hansen's desk drawer, removing something, and placing it in her pocket. A few days later, the camera captured Terwilliger in Hansen's office. The hospital contends that the video showed Terwilliger opening Hansen's desk drawer, hopening it, and closing it without taking anything. Terwilliger claimed that she was merely pulling a trash can out from behind the desk and denied openeing the desk drawer. However, it was clear that Terwilliger was pulling something out from behind the desk, and that she was not assigned to clean Hansen's office on that day. The hospital terminated both Terwilliger and the other employee caught on camera in Hansen's office.

The Lawsuit

Terwilliger filed suit against the hospital, alleging that she was fired in retaliation for exercising her rights under the FMLA and that the hospital interfered with her FMLA rights by pressuring her to return to work while she was on leave. The hospital moved for summary judgment as to both claims.

The district court rejected Terwilliger's retaliation claim, holding that regardless of whether Terwilliger actually stole anything from Hansen's desk, her supervisor reasonably believed that she attempted to do so, and Terwilliger failed to show that the stated reason for her termination was a pretext for retaliation.

With respect to Terwilliger's interference claim, the hospital argued that Terwilliger was never denied any benefits to which she was entitled under the FMLA, as she returned to work only after her doctor released her to work without any restrictions. The court rejected this argument, holding that Terwilliger "had a right not to be discouraged from taking FMLA leave." In light of Terwilliger's testimony, the court found that "a reasonable jury could conclude that Defendants interfered with Plaintiff's exercise of her FMLA rights by discouraging or chilling her exercise of those rights."

Insights for Employers

The court's decision in this case is obviously troubling for employers who need to follow up with employees on FMLA leave. The FMLA rules specifically authorize employers to require employees on FMLA leave to report periodically on their status and intent to return to work. However, the ruling in Terwilliger seems to suggest that requiring such reports may constitute "interference" if the employee merely feels "discouraged" from taking FMLA leave. Unfortunately the court's decision does not grapple with these issues.

Employers can, however, take some steps to reduce the risk of an FMLA interference claim like Terwilliger's:

  • Make sure that all employees receive your FMLA policy and are advised of their FMLA rights as required by the regulations.
  • Ensure that your FMLA policy and notices specifically inform employees that they will be required to provide regular status reports while on FMLA leave.  
  • Tailor the frequency of these status reports to an employee's actual situation. While weekly or even more frequent reports may be appropriate in some cases, in others it may be sufficient to communicate with the employee every other week or even less frequently.  
  • Most importantly, train any management personnel who will be communicating with employees on FMLA leave to ensure that they do not improperly pressure employees or suggest that an employee's job may be in jeopardy if he or she remains out on FMLA leave. Consider having HR personnel, rather than supervisors, conduct these communications.