Managing intermittent FMLA is every employer’s nightmare (or is it just me?). Employees are entitled to take leave and operations folks find it difficult to keep the trains running on time with employees who don’t show up every day. Employers try to keep a tight rein on it— requiring employees to submit medical certifications, seeking recertification when appropriate, requiring clear recording of each FMLA absence, etc. So when does that tight rein go too far? In Diamond v Hospice of Florida Key, the Eleventh Circuit analyzes both an interference and an retaliation claim—finding the employer went too far (at least too far to get summary judgment). This post will look at the Diamond Court’s discussion of the interference claim and I will address the retaliation claim in a future post.

Facts of Ms. Diamond’s Case

Jill Diamond was a social worker for Hospice of Florida Keys. Her parents were ill, she submitted the appropriate medical certifications and Hospice approved her to take intermittent FMLA leave. She took leave at different time from June 2013 until February 2014. So far, so good. As per company policy, Diamond used her PTO for these approved absences. Also as per company policy, because her PTO balance was getting low, Diamond got a written notice that her balance was low and continued absences could affect her employment. The notice didn’t mention FMLA—just her low PTO balance. A company witness admitted that such a notice could discourage an employee from taking FMLA leave.

When her mother’s condition got worse, in March 2014 Diamond requested and was approved for a few more days, although Hospice asked her for an updated medical certification. While Diamond was on leave, Hospice got a new HR Manager and the real issues (according to Diamond) began. Not only did the CEO allegedly warn Diamond if she worked for another company she would be out of a job, the HR Manager requested additional documentation, such as receipts for food or lodging or documents from the hospital “to verify where [she] said [she] would be.” Diamond took additional leave when her mother went into the hospital and Hospice asked for additional documentation. Hospice also noted that Diamond’s “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.” Hospice also warned her that she might want to conserve her FMLA leave, as it was “running low.” Diamond testified that because of this warning, she did not take some available leave and instead made the 600 mile round trip to her parents’ home rather than staying longer and providing the care the doctors said her parents needed. The HR Manager also provided examples of how patient care was suffering because of Diamond’s emergency leaves (all FMLA covered). Five days later after this explanation (about 2 weeks after her last leave), Hospice terminated Diamond for poor job performance.

Diamond sued, claiming that Hospice interfered with her FMLA rights and the retaliated against her for taking FMLA leave. The district court granted summary judgment on both claims, Diamond appealed and the Eleventh Circuit reversed.

Interference Claims are More than Just Denied Leave

The Eleventh Circuit started with an explanation of what Diamond must prove to establish an FMLA interference claim: (1) that she was denied a benefit to which she was entitled under the FMLA and (2) that she was prejudiced by the interference. In this case, Diamond got all the leave she requested and was reinstated when she returned—so what’s the problem? The Court found that interference goes beyond denying leave or refusing to reinstate. Citing the regulations, the Court found that discouraging an employee from using leave can be interference. Importantly, the employer’s intent doesn’t matter—only the employer’s conduct and whether it discouraged the employee. Finally, the Court noted that a plaintiff may not need to show denied leave or lost wages to establish prejudice from the interference. If a plaintiff got the leave (and thus did not lose wages), she can show actual monetary losses sustained as a direct result of the violation.

In Diamond’s case, the Eleventh Circuit found ample evidence for a jury to conclude that Hospice potentially discouraged Diamond from taking FMLA leave. Specifically, the Court found that a jury might find that the memo telling Diamond that her continued absences (all FMLA covered) compromised the quality of patient care could have discouraged her from taking more leave. It further noted that the requests for “proof of need”—something above and beyond what the FMLA regulations envision and which would not address whether Diamond’s parent had a serious health condition—could be found to be discouraging. Finally, the Court noted that a jury could believe Diamond’s testimony that had Hospice not been riding her about her leave, she would have taken additional time off rather than make multiple 600 mile round trips—an expense the jury could award to Diamond.

So What Have We Learned?

Intermittent FMLA is tough to manage.

  • The fact that the employee got all the leave he or she actually requested doesn’t foreclose an interference claim. How you grant the leave can make a difference. If HR approves the leave, make sure the supervisor isn’t sending a different, discouraging message.
  • You can request documentation but make sure it goes to the need for leave. You should always require medical certifications but you can’t require a doctor’s note for every absence. Think twice before requiring non-medical justifications—like food and lodging receipts—because they don’t relate to the need for leave. If you have reason to believe that an employee is lying about leave, there may be ways to get verification but in light of this decision a blanket request for receipts is probably not the best route.
  • Be careful when addressing performance issues with employees taking intermittent FMLA as it can look like interference. You have to manage performance, even when someone is taking leave, but make sure that the issues are not simply about the employee’s availability or reliability (which is hard to distinguish from the leave). Focus on what the employee does when she is at work—not that she has been absent.

I’ll say it again, intermittent FMLA leave is tough to manage. Keep in mind, however, that FMLA interference claims are also tough (and expensive) and with the Eleventh Circuit’s new decision elevating discouragement to interference, they just got tougher.