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The Bermuda Triangle of Leave Compliance

Employee leave laws offer employees a variety of protections, but can create a confusing compliance situation for employers.  Leave situations are so fact-specific that few, if any, bright-line rules exist to guide employers. Recent court decisions, however, have provided some clarity and guidance for employers facing leave under the ADA, the FMLA and workers’ compensation. Employers should take note of some policy considerations to best direct their human resource and supervisory personnel and empower themselves to take appropriate actions.   

with co-author Bonnie Burke

Recent developments in leave laws have left many employers feeling lost in a sea of compliance issues. The interaction of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and its amendments and Workers’ Compensation can be so intricately connected that employers are unsure which statutes apply to various employee needs and whether recent court opinions impact the way they have typically responded to those needs.  Moreover, these employee needs for accommodation and leave create situations so fact-specific that employers, stumbling through the statutory requirements, look for bright-line rules that simply cannot exist.

Employers need to know, for example, whether and how to adjust their response to an employee who informs his or her employer of a need to be away from work for an extended period of time because of a health condition. How should an employer respond when an employee asks about FMLA leave but then never provides proper documentation from his or her health care provider? What can an employer do when an employee is injured on the job and takes FMLA leave, but is unable to return even to light duty work because of his or her injury? In this sea of uncertainty, an employer’s best protection is to provide a navigational chart for addressing the situations with detailed policies and procedures that promote consistency and reflect amendments to leave laws and recent court decisions.

FMLA

Court decisions within the past two years have provided some important clarification on FMLA issues, many of which can be addressed in an employee handbook. Since employers who have an employee handbook are required to include a FMLA leave policy, they should make the most of the opportunity and set forth all expectations related to taking FMLA leave; explain the responsibilities of both the employer and the employee for requesting leave, staying out on leave and returning from leave.

Going Out on Leave

In Whitfield v. Hart Cty., Ga., the court explained that an employer may not require an employee to use all paid time off prior to using FMLA leave time because to do so would allow an employer to avoid FMLA protections by designating the leave as paid time off and taking an adverse employment action without violating the FMLA.2  Similarly, employers may not require employees to use unaccrued time off – borrowing against future PTO – in lieu of FMLA leave. Employers should consider requiring all accrued but unused paid time off to run concurrently with FMLA leave so that employees are not out of work for excessive lengths of time by backing up leave time to any previously accrued paid time off (PTO). If an employee takes intermittent leave, employers may require any that PTO that accrues during the time in between leaves be used concurrently with FMLA leave times. Employers should be aware of leave taken in connection with a job-related injury; employers cannot require employees to use paid time off instead of collecting workers’ compensation benefits.  Employers, however, may allow an employee injured on the job to use PTO to supplement the benefits paid by workers’ compensation.

Notice of leave is often a source of frustration for employers for a variety of reasons. Sufficient notice must meet two criteria: time and content. Notice of foreseeable leave should be provided to an employer in writing at least 30 days before taking leave, while notice for unforeseeable leave should be provided as soon as practicable.3 When employees need unforeseeable leave, the FMLA policy should explain how and to whom employees should give notice. In either situation, the notice must contain sufficient information for the employer to understand that the employee needs FMLA leave, though it need not specifically reference the FMLA or use any other “magic words.” In White v. Beltram Edge Tool Supply, Inc., the United States Court of Appeals for the 11th Circuit held that, when an employee requesting time off provides sufficient information to allow an employer to understand that a serious medical condition is involved or that the employee will be hospitalized, the employer should consider itself on notice that FMLA leave is needed.4 Further, the FMLA policy should require that employees on leave notify the employer if they are able to return to work sooner than originally expected or if they are not able to return as expected.

Earlier this year, the 11th Circuit decided a case that exemplified the thin line an employer must walk when trying to communicate with an employee taking leave. 5 While an employer needs to receive necessary medical documentation and status updates from employees related to leave, employers must be careful not to tie leave requests to job performance or pressure employees to return to work. In Diamond v. Hospice of Florida Keys, Inc., the plaintiff took intermittent FMLA leave over a period of 10 months to care for her ill parents.  During this time, she received frequent written notices warning her that her PTO balance had dropped and that exhaustion of her PTO, together with absences “could adversely affect her job and benefits.”6  The employer’s notices, together with other documentation requirements, were found to interfere with the plaintiff’s FMLA rights by discouraging her from taking FMLA leave to care for her sick parents. The court found that statements such as, “[y]our continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization” could be interpreted to interfere with an employee’s right to take leave.7 To avoid miscommunication, employers should require that employees on leave provide status updates periodically. Employers should alert employees to the need for these updates at the beginning of leave so that employees expect to be asked and are less likely to feel as though they are being pressured to return to work in a manner that violates the FMLA. Employers may want to require those updates at specifically designated times (halfway through the expected leave and again two weeks before the end of leave, for example).

Intermittent leave and reduced-schedule leave are options under the FMLA that can allow employees to take the time they need without being completely absent from their jobs. Employees taking reduced schedule leave can reduce their hours from full-time to part-time hours and take the remainder of the time as leave time. For intermittent leave, employer policies should explain that employees must work with their employer to schedule doctor appointments and treatments in a manner that least disrupts the employer’s business. An employer may temporarily transfer an employee who takes intermittent or reduced-schedule leave to another position that accommodates the employee’s need to be away from work but must maintain the pay and benefits the employee receives for his or her regular position.

Where an employee fails to adhere to the employer’s FMLA policy, by failing to give proper or timely notice for example, an employer may apply its disciplinary process in the same manner as a violation of any other type of leave policy.

Staying Out on Leave

FMLA leave abuse has been on the rise for several years now, but some recent court decisions have clarified how employers can respond. Employers who believe an employee is misusing intermittent FMLA leave, for example, should investigate the information leading to this belief. If the information ultimately provides for a reasonably informed belief of misuse, the employer can take appropriate action. Earlier this year, in Capps v. Mondelez Global, LLC, the United States Court of Appeals for the 3rd Circuit recently joined three other circuits in holding that an employer’s honest belief – even if it is ultimately mistaken – that FMLA leave was misused, can be a defense to a FMLA retaliation claim.8 Employers who initially form this belief based on a co-worker’s speculation or some rumor, however, should be sure to investigate properly and document the investigation to avoid allegations that the reporting employee simply had an ax to grind or ulterior motive for spreading the rumor. The investigation should gather facts first and leave the employee interview as the last step. Employers should consider using a third party to conduct the investigation, such as outside counsel experienced with such investigations. As demonstrated last year in Sharif v. United Airlines, Inc.,9 a company has “no obligation to pursue additional investigation when it ha[s] more than ample reason to believe it ha[s] been lied to.”10  Policies that allow for discipline or termination where an employee has been dishonest will help bolster an employer’s decision to discipline or terminate. The policy might be a Code of Conduct or a Dishonest Employee Policy, but it should not only be a part of the FMLA or ADA policies, singling out those employees. It must apply to all policies and employee behaviors. The policy should set forth that employees can be disciplined or terminated immediately for dishonesty or the submission of false information, including information submitted in connection with FMLA leave requests or accommodations under the ADA.

Employers can combat FMLA leave abuse by using their right to seek re-certification for medical conditions requiring intermittent leave. A policy should explain that re-certification of medical conditions for all employees with intermittent FMLA leave will occur at fixed intervals, such as every six months or every leave year,11 regardless of changes in the employee’s condition unless the employee has stated he or she no longer needs leave. The policy may include that suspicious leave patterns may also trigger a re-certification request.

Employers can further guard against leave abuse by requiring that employees provide a short written statement for every absence, confirming the nature of the time taken. The statement should simply say that the employee took time for sick leave, vacation time or FMLA leave. If the employee is later found to have been misusing the FMLA time, and the employer has an honesty policy stating that the employee may be disciplined or terminated for abusing FMLA leave, the employer can take appropriate remedial action. Moreover, if an employer needs to terminate or take disciplinary action against an employee for excessive absenteeism, the employer has a means of verifying which absences count as FMLA leave and which do not.

While employers may not discipline or terminate an employee because he or she has taken FMLA leave, the employer can still terminate or discipline an employee for other reasons, even if the employee is on leave or has just returned from leave. Taking such an action, however, often makes employers cringe because a close temporal proximity between the leave and an adverse action can result in a court finding that the employer violated FMLA protections.  A recent case explained for the first time how the United States Court of Appeals for the 11th Circuit will measure temporal proximity in FMLA retaliation cases. In Jones v. Gulf Coast Health Care of Delaware, LLC,12 the plaintiff had to prove a prima facie case of FMLA retaliation by showing his employer “intentionally discriminated against him in the form of an adverse employment action for having exercised an FMLA right.”13 In such a case, the employer’s intentions matter because the plaintiff must show that the “employer’s actions were motivated by an impermissible retaliatory or discriminatory animus.”14 When a plaintiff proves FMLA retaliation using circumstantial evidence, the court must employ the McDonnell-Douglas burden-shifting, as it did here. The court found that the FMLA retaliation claim hinged on whether the plaintiff could prove that the Defendant’s decision was “causally related to the protected activity.”15

A former Activities Director for the defendant, a long-term-care nursing facility, went on FMLA leave to have rotator cuff surgery. At the conclusion of his 12 weeks of leave, his doctor did not clear him to return to work. Without the fitness-for-duty certification, the defendant would not allow the Activities Director to return to work and granted the plaintiff an additional 30 days of non-FMLA leave to complete his physical therapy. During the 30-day leave, the Activities Director visited the Busch Gardens theme park twice and took a trip to St. Martin. He texted pictures of his trips to Busch Gardens to his staff and posted pictures of his trip to St. Martin on Facebook. When he returned to work – with a fitness-for-duty certification – his supervisor presented him with the pictures and posts and accused him of abusing his leave, stating that it appeared he could have returned to work earlier. The plaintiff was suspended and then terminated.  He brought suit alleging interference and retaliation with his FMLA rights.

“To establish a causal connection [in a FMLA retaliation case], a plaintiff must show that the relevant decision-maker was aware of the protected conduct and that the protected activity and the adverse actions were not wholly unrelated.”16 Showing close temporal proximity between the adverse employment action and the protected activity can be circumstantial evidence of that causal connection. Generally, courts in Georgia have held that three to four months between the protected activity and adverse action is too long, but that one month is sufficiently close. The crucial question here, however, was how to measure the time. The 11th Circuit decided, for the first time in a published decision, “that temporal proximity, for the purpose of establishing the causation prong of the prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.”17 The Court explained that when employees take 12 weeks of leave and suffer an adverse employment action upon return, a temporal proximity argument would always be unattainable because of the three-month disparity. Essentially, an employer would be safe to take an adverse action against such an employee upon return, knowing that the employee would be foreclosed from asserting a temporal proximity argument.  By measuring the time from the end of the leave, employees will not automatically lose the argument when they have taken a 12-week leave.

Employers need not always refrain from taking an adverse employment action against an employee who is out on FMLA leave, however. Certain circumstances allow an employer to take necessary business actions. If an employee’s position is among those being eliminated as part of a reduction in force, the employee may be laid off despite being out on protected leave. If an employer has begun a progressive disciplinary process against an employee, and the employee takes FMLA leave knowing that the employer is about to terminate his or her employment, the employer may terminate despite the leave. As a policy consideration, however, the employer should be careful to fully document the prior disciplinary actions and be able to show that termination was likely or impending prior to the employee’s leave.

Earlier this year, in Patterson v. AJ Servs. Joint Venture I, LLP18 the plaintiff alleged that the defendant violated the FMLA, ADA and Title VII when it terminated her employment approximately 10 days after she sustained an on-the-job injury – for which she filed a worker’s compensation claim – and requested medical leave. The defendant had repeatedly counseled the plaintiff about her performance deficiencies prior to her injury.  She was already concerned about losing her job when she tripped over a telephone cord at work and injured her knee, wrist and shoulder. Her direct supervisor was notified of her accident and injuries. He directed her to seek medical attention and created a memorandum documenting the event.

The plaintiff inquired about and took FMLA leave and, in fact, she never returned to work. While she was on leave, the plaintiff’s supervisor noticed additional deficiencies in her work and decided to terminate her employment. Importantly, the plaintiff’s supervisor properly documented her personnel file during the time he counseled the plaintiff for her work deficiencies, and the defendant could show a trail of performance issues and her near-termination prior to her injury and leave.

The plaintiff filed suit alleging, among other things, that she was terminated in retaliation for using her FMLA leave, in an effort to thwart further use of her FMLA leave. She was able to show the close, temporal proximity between her termination and her date of injury and use of leave to prove the causation prong of her FMLA claims. The defendant, however, was able to counter by showing that her performance issues were long-standing and that the plaintiff was nearing the point of termination even before her injury and need for leave. The court sided with the employer on all counts. The defendant’s careful documentation of performance issues, disciplinary action and possible termination prior to the plaintiff’s need to take leave enabled the defendant to rebut the close temporal proximity of the leave and Plaintiff’s termination.

Returning from Leave

Among the issues employers face about employees returning from leave is the employee’s right to reinstatement to his or her job. In Jones v. Gulf Coast Health Care of Delaware, LLC, the plaintiff based his allegation of FMLA interference on the defendant’s denial of his request to return to work on light duty. The Court found that, because the plaintiff requested additional leave time at the conclusion of his 12 weeks, he was no longer entitled to be restored to his prior position or an equivalent position. While the FMLA provides for 12 weeks of leave, it does not provide an entitlement to an extension of the leave. The defendant did not give the plaintiff an extension of his FMLA leave, but specifically designated the additional 30 days as non-FMLA leave. Therefore, the plaintiff was not denied a right to which he was entitled. The court emphasized that an employer has not interfered “with an employee’s right to reinstatement if that employee is terminated after taking leave in excess of the 12 weeks permitted by the FMLA.”19 Further, the FMLA requires the employer to return the employee to his or her former position or an equivalent position, but it does not provide a right to light duty.  Light duty or some other adjustment may be accommodation under the ADA, however, if the employee has an ADA-qualifying disability and can properly document the disability. Light duty may also be an option if the employee has gone out on leave because of a job-related injury covered by workers’ compensation.20 Recall that, while employees are not entitled to reinstatement if they are on leave for more than the 12 weeks provided for by the FMLA, employers should be cautious about terminating or taking other adverse actions against employees until they have actually exceeded their 12 weeks.21 Even then, employers should determine whether an extension of leave time is necessary as an accommodation under the ADA.

ADA

Recent cases have fortified an employer’s requirement to engage in the interactive process and properly apply ADA protections. In August, the Federal District Court for the Middle District of Georgia denied summary judgment to the defendant employer in Grant v. Hospital Authority of Miller County, where the defendant failed to engage in the interactive process with an employee on FMLA leave who informed the defendant of her disability. Further, the defendant could not show that a short extension of the employee’s FMLA leave as an accommodation under the ADA would have caused the employer undue hardship. 22

Some chronic conditions may qualify as a serious health condition under the FMLA and as a disability under the ADA. When an employer is faced with an employee suffering from this type of chronic health situation, it should look to see which statute – the FMLA or the ADA – will provide the best benefit to the employee. If the employee needs intermittent leave because of the condition, employers should look to the FMLA for time off. The court’s decision in White v. Beltram Edge Tool Supply, Inc. reiterates that, while FMLA leave may be used to care for others, the ADA focuses solely on the employee’s health; an employee will not be granted an accommodation for a family member’s disability. 23

While the FMLA permits employers to seek detailed medical information to justify the leave, re-certification for intermittent leave and fit-for-duty certification for return to work, the ADA prohibits many types of medical inquiries. Employers may request documentation that an employee has a disability and “the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”24  If the employee was injured on the job and that injury forms the basis of the disability and need for accommodation, then the employer likely has all the documentation it needs.

Employers should be mindful that the ADA has an affirmative action element to it in that the employer is supposed to treat the disabled employee better than non-disabled employees. When transferring an employee to another open position as a reasonable accommodation, the disabled employee need not be the best qualified candidate for the job, but he or she does need to be able to perform the essential duties of the job.25

The 2008 amendments to the ADA also lowered the standard for employees who claim they are being “regarded as” disabled.26 Prior to the amendments, plaintiffs needed to show that they were “regarded as” being substantially limited in a major life activity. Now, however, plaintiffs need only show that they are “regarded as” having an impairment.27 In Cheatham v. Augusta-Richmond County Georgia, the plaintiff was able to show that she was “regarded as” having a disability when her employer demoted her after she requested days off from work due to an ongoing medical problem.28 The court further found that, because her employer regarded her as having an impairment in violation of the ADAAA, she did not need to prove that she had a disability to show discrimination.

A cautionary note: where an employee has had a job-related injury for which he or she is receiving workers’ compensation, employers may be prone to treat the recently-injured employee as having an impairment and may fall prey to creating a “regarded as” discrimination situation.

Worker’s Compensation

Workers’ compensation is not a federal statute, but is governed by state law.29 In Georgia, workers’ compensation claims were on the rise from 2006 through 2009.30 The economic downturn and high unemployment rates likely contributed to the drop in claims until 2012.31 In 2013, several states introduced legislation that cut or limited benefits. Courts in Oklahoma and Florida, however, recently struck down measures that limited workers’ compensation benefits, likely beginning a trend that will move across the country.32 Employers who have employees in multiple states will need to be sure they are compliant with the workers’ compensation laws in each state in which they have employees.

An employee can suffer a job-related injury even if the employee is away from his or her usual place of employment as long as the employee is still performing his or her job.33 For example, an injury may be covered under workers’ compensation if the employee were injured while away on a business trip, attending a business function or doing some work-related task away from the office, like running an errand or working from home.  If an employee is injured because of horseplay or violation of a company policy, workers’ compensation will not necessarily cover the injury, so employers should consider including in employee handbooks policies that prohibit horseplay and certain dangerous behaviors.

Employers will want to be sure that their workers’ compensation policies clearly explain the need to report injuries promptly to the employer and how to report such injuries. Policies should also explain that the employer will not retaliate against an employee for filing a worker’s compensation claim. Supervisory personnel must be properly trained to respond to the injury, report the injury and complete the necessary forms (such as the WC-1 form “Employer’s First Report of Injury or Occupational Disease”) and not to retaliate against employees for making a claim or discourage employees from making a claim.

Whenever an employee is injured on the job, the employer must also look to the FMLA and the ADA to see if those statutes have been implicated. For example, time off for an injury may qualify as FMLA leave, or the injury sustained may become a disability under the ADA requiring an accommodation by the employer to allow the employee to return to work.

Employers should have policies that clearly explain the types of documentation they will seek from employees who are out on leave and how often they will seek those documents.  Further, if the employer wants more than just the medical certification documentation permitted under workers’ compensation, the FMLA or the ADA, it should apply those document requests – requests for leave or supporting documentation – to all leave situations in a facially neutral manner.

Employers face differing standards when returning employees to work after leave, depending on the circumstances of the leave. The FMLA gives employees up to 12 weeks of leave and protections against interference with those rights. Additional leave may be considered an accommodation under the ADA. In contrast, workers’ compensation adopts a philosophy of getting employees back to work as soon as possible, even if only to a light duty position. The option of light duty, however, arises under workers’ compensation or may be an accommodation under the ADA, but is not a protection provided by the FMLA. If a job-related injury or illness becomes a disability under the ADA, certain adjustments to the employee’s work conditions may be available as an accommodation by the employer, as long as the adjustment does not cause undue hardship to the employer. Therefore, an employee may be free to refuse light duty work in lieu of FMLA leave and give up certain workers’ compensation benefits. Where an employee’s job-related injury becomes a disability under the ADA, light duty may be necessary as an accommodation. Any limits on the time an employee may work light duty under worker’s compensation, therefore, may have to be adjusted depending on whether light duty is needed as an accommodation under the ADA.

To manage expectations about returning to work, employers may consider having a policy that explains its return-to-work philosophy and sets forth the expectations for the employee. This type of policy can pave the way for employers to reach out to employees, to check the employee’s recovery progress or offer light duty work or a temporary re-assignment.

Conclusion

Employers have the ability to create policies that chart a course through the troubled waters of leave laws.  Often key policies do not exist or are not properly enforced and documented and can lead to compliance issues under the FMLA or ADA. Employers, together with their counsel, should construct policies that address the situations that are most problematic for their business and train management personnel to use and enforce them.

_______________________

1 Lawrence & Bundy is a commercial litigation firm with a comprehensive breadth of experience representing and advising clients across a wide spectrum of industries. The foundation of our firm’s success is excellent client service, starting with our deep investment in the attorney-client relationship. We devote extensive time and resources to learning our clients’ problems and then working to address their challenges with real-world solutions.

Allegra Lawrence-Hardy is a founding partner at Lawrence & Bundy, LLC where she represents an array of clients, including Fortune 100 companies, in business and commercial litigation and labor and employment law.

Bonnie Burke is an attorney at Lawrence & Bundy, LLC where she practices labor and employment law.

2 See Whitfield v. Hart Cty., Ga., 3:13-CV-114 (CDL), 2015 WL 1525187, at *5 (M.D. Ga. Apr. 3, 2015) (noting that a policy that requires the exhaustion of paid leave before taking FMLA leave would violate the FMLA).

3 29 U.S.C. § 2612(e)(2); 29 C.F.R. § 825.302(a).

4 See White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1197 (11th Cir. 2015) (notice contained sufficient information for FMLA leave when employee said her knee “gave out,” that it was “painful,” that she “could [not] put any weight on it” and was planning to see an orthopedic surgeon).

5 Diamond v. Hospice of Fla. Keys, Inc., 677 F. App’x 586 (11th Cir. 2017).

6 Id at 588.

7 Id at 593.

8 Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. Jan. 30,2017) (joining the 7th, 8th, and 10th circuits); cf., Jones

  1. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1271 (11th Cir. 2017) (wherein court held that employer’s belief that employee “abused and misused” FMLA leave formed the basis for his termination and, without more, was not pretext for discrimination.)

9 Sharif v. United Airlines, Inc., 841 F.3d 199 (4th Cir. 2016). There, the employee and his wife were both employees of United Airlines. They both took vacation time for the same block of time, but Mr. Sharif was scheduled to work a single shift in the middle of the scheduled vacation time. He had previously taken intermittent FMLA leave for anxiety; on the morning of the day he was scheduled to work, he called in and used FMLA leave. The company investigated and learned that his vacation time coincided with his wife’s vacation time, that they were planning to be in South Africa and that no return flight from South Africa was scheduled to leave in time to get him back to work for his scheduled shift. UA terminated his employment for fraudulent use of FMLA leave. He sued alleging FMLA retaliation, but the court dismissed his claim, finding that even just the one incident justified the termination. See also, Morgan v. Orange Cty., Fla., 477 F. App’x 625, 628 (11th Cir. 2012) (Court held that plaintiff, who asserted a claim for FMLA retaliation, could not show that his employer “lacked a good faith belief that he had been dishonest during the internal investigation” into claims that the employee had misused his FMLA leave to take a cruise. The court found that the employer “acted on an honestly held belief that [the employee] had engaged in misconduct warranting termination.”)

10 Sharif, 841 F.3d at 206.

11 29 C.F.R. § 825.308 (also providing that employers cannot seek re-certification more often than monthly and only in connection with the employee’s absence).

12 Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261 (11th Cir. 2017).

13 Id. at 1270 (quoting Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001)).

14 Id. (citation omitted).

15 Id. at 1271 (quoting Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010)).

16 Id. (quoting Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013)).

17 Id. at 1272. As an aside, the court noted that it has also held that it measures temporal proximity for FMLA interference claims this way as well. Id.

18 No. CV 115-138, 2017 WL 830394 (S.D. Ga. Mar. 2, 2017). [Note: This matter is currently on appeal to the 11th Circuit]

19 Jones, 854 F.3d at 1268.

20 See 29 C.F.R. § 825.216(c); see also 29 C.F.R. § 825.313(d). Further, the FMLA specifically provides that employers may “have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.” 29 U.S.C. § 2614(a)(4).

21 29 C.F.R. § 825.216(c); see also White v. Beltram Edge Tool Supply, Inc., 789 F.3d at 1197-98 (where employer claimed it terminated employee for requiring more than 12 weeks of FMLA leave, the court stated that notices must include an estimate of the time needed and, though the plaintiff’s notice indicated a need for nearly 13 weeks of leave, her doctor indicated she would have actually been able to return within the 12-week period.)

22 In Grant v. Hosp. Auth. of Miller Cty., No. 1:15-CV-201 (LJA), 2017 WL 3527703 (M.D. Ga. Aug. 16, 2017), the plaintiff, who was pregnant, was ordered to bedrest to control her blood pressure. The plaintiff filed and was approved for FMLA leave that same day. Not long thereafter, she gave birth at 28 weeks of gestation by emergency caesarean section. The plaintiff spoke with the HR Director on December 8 and told her of the delivery and c-section operation and need for time to recover. The plaintiff was informed that her FMLA leave would expire the next day, but that the HR Director understood that the plaintiff would need additional time to recover from her c-section. The plaintiff did not return to work on December 9 when her leave expired, she never expressly asked for additional leave and the defendant made no offer for additional leave, other than the comment by the HR Director that the plaintiff would need extra time to recover from her c-section. On December 12, the plaintiff’s doctor released her to return to work, but the plaintiff did not tell the defendant, nor did she provide the defendant with her fitness-for-duty certificate. On December 18, 2014, the defendant terminated the plaintiff’s employment for failure to return to work following the expiration of her FMLA leave and for failure to obtain a release from her doctor releasing her to work. The HR Director invited the plaintiff to apply for other positions within the company, but the plaintiff did not. The plaintiff brought suit, making several allegations, among which were disability discrimination in violation of the ADA and retaliation and interference in violation of the FMLA. Under the ADA claim, the plaintiff alleged that the defendant failed to accommodate her disability. The lesson to employers is to look to each statute for applicability when an employee has a medical condition and need for leave.

23 In Whitfield v. Hart Cty., Ga., No. 3:13-CV-114 (CDL), 2015 WL 1525187 (M.D. Ga. Apr. 3, 2015), the plaintiff took time off from work sporadically to care for her disabled child. The court, while analyzing the plaintiff’s claim for associational discrimination under the ADA, held that “[a]n employer does not violate the ADA by discharging an employee who was frequently absent from work due to her disability and that of a family member.” Id. at *9 (quoting Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1231 (11th Cir. 1999)). That is because the ADA does not require employers to provide reasonable accommodations to an employee who associates with a disabled relative. Therefore, if an employee violates a neutral, uniformly applied attendance policy to care for a disabled relative, the employee may be terminated “even if the reason for the absence or tardiness is to care for the disabled” relative. Id. (quoting Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1083 (10th Cir. 1997)).

24 29 C.F.R. § 1630.2(o)(3).

25 The employee should not be asked to apply for the position and compete against other candidates. The transfer is a reasonable accommodation.

26 42 U.S.C.A. § 12102.

27 Id.

28 Cheatham v. Augusta-Richmond Cty. Ga., No. CV 116-104, 2017 WL 78569, at *4 (S.D. Ga. Jan. 9, 2017).

29 O.C.G.A. § 34-9-1 et seq.

30 GA. STATE BOARD OF WORKERS’ COMPENSATION, Statistics (2017), available at: https://sbwc.georgia.gov/statistics (last accessed Sept. 11, 2017).

31 Id.

32 Vasquez v. Dillard’s, Inc., 2016 OK 89, ¶ 1, 381 P.3d 768, 769 (2016) (finding “that the Oklahoma Employee Benefit Injury Act, 85A O.S. 2014 201-213, is an unconstitutional special law under the Oklahoma Constitution” because it “creates impermissible, unequal, disparate treatment of a select group of injured workers.”); Westphal v. City of St. Petersburg, 194 So. 3d 311, 313 (Fla. 2016) (striking a 104-week cap on temporary disability benefits as unconstitutional because it denied “right of access to courts” by “depriv[ing] an injured worker of disability benefits” when the worker is totally disabled, incapable of working, but has “not yet reached maximum medical improvement,” “thereby creating a system of redress that no longer functions as a reasonable alternative to tort litigation.”)

33 O.C.G.A. § 34-9-1(4).


Allegra Lawrence-Hardy

Allegra Lawrence-Hardy is a partner at Lawrence & Bundy LLC and has nearly two decades of experience including law firm management, national practice group leadership and as a trusted counselor and advisor to senior business leaders. Allegra focuses her practice on business and commercial litigation, labor and employment and crisis management. She has successfully defended Fortune 100 companies, public entities and nonprofit organizations throughout the United States and abroad in numerous trials, arbitrations and other forms of alternative dispute resolution. Allegra is known for her skill in trying cases, negotiating complex settlements and finding creative solutions. Allegra also helps develop processes as a means of leveraging legal work to drive business objectives for improving the efficiency and delivery of legal services.

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