Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Amy K. Lee | The Daily Recorder | Oct 25, 2012

The federal Family and Medical Leave Act has been part of workplace law since 1993. The courts continue to interpret the Act, its amendments, and its regulations, including relatively recent changes implemented in 2009. Rulings concerning the FMLA may influence California courts’ interpretations of the similar California Family Rights Act. Below are some notable recent developments.

How Much Notice of the Need for FMLA Leave Is Enough?

In Lichtenstein v. University of Pittsburgh Medical Center (3rd Circuit of Appeals), an employee sued claiming the Medical Center terminated her for an FMLA-protected absence. The employee had a history of poor attendance and continued failing to report to work. The supervisor decided to terminate the employee the next time she called off, but she did not give the employee a written warning. One day, the employee called her supervisor and said she was in the emergency room with her mother and would be unable to attend work that day. The supervisor noted the absence in the attendance log. Four days later, when the employee reported back to work, the supervisor terminated her.

The trial court dismissed the employee’s case on summary judgment, but the Court of Appeals reversed the decision. The Court of Appeals ruled that in determining if an employer had “adequate notice” of an employee’s need for FMLA, the key is whether the employee provides sufficient information for the employer to conclude that the FMLA may apply. The employee “need not expressly assert rights under the FMLA or even mention the FMLA.” If the notice requirement is met, it is employer’s burden to request additional information.

In this case, the employee informed the supervisor that her mother was ill and in the hospital. Because the FMLA would potentially cover such absences, the employer should not have terminated the employee without initiating the FMLA designation process. This is a good lesson for employers who adopt rigid attendance policies and do not evaluate absences on a case-by-case basis.

Employers’ Right to Address Leave Abuse

In Scruggs v. Carrier Corporation (7th Circuit), the employer took somewhat unorthodox steps to address an excessive absenteeism problem. It hired a private investigator to follow 35 employees believed to be abusing the company’s leave policies. One of the employees was authorized to take intermittent leave under the FMLA to take care of his mother in a nursing home. On one of the employee’s intermittent FMLA days off to care for his mother, the private investigator determined that he had not in fact visited his mother. Based on that information, the employer terminated his employment.

The employee sued, claiming the employer interfered with his FMLA rights and retaliated against him for using the FMLA. The trial court determined the employer had an “honest suspicion” the employee was abusing his FMLA entitlement and dismissed the case. This time, the Court of Appeals agreed with the employer. The Court explained that the employer reasonably relied on the employee’s pattern of prior absenteeism and the investigator’s video surveillance of the employee’s activities. Taken together, these facts were sufficient to establish the employer acted appropriately.

Of course, employers should not assume an employee is abusing FMLA/CFRA without making appropriate inquiries. While employees on leave may be terminated for misconduct, including leave abuse, employers should consult with experienced counsel before doing so.

Performance Standards

In Pagel v. TIN, Inc. (7th Circuit), the Court addressed whether performance standards must be adjusted based on an employee’s FMLA absences. The employee in this case was an outside salesman. As part of his responsibilities, he submitted daily activity reports summarizing each day’s sales, among other information. When the employee began experiencing chest pain, he sought medical treatment and was admitted to the hospital for a procedure. He continued receiving treatment and underwent another procedure. When the employee’s sales figures began declining, his supervisors told him he would be terminated if his sales did not improve.

Shortly after, the employee’s supervisor decided to evaluate the employee’s performance the following day on a “sales ride along.” The employee only had one day to arrange sales calls, which typically require more notice. Both the supervisor and the employee agreed the calls did not go well. The employer then fired the employee.

The employee sued, claiming interference and retaliation under FMLA. Although the trial court dismissed the case, the Court of Appeals reversed the decision. The Court stated that the employer should have made a reasonable adjustment to the employee’s performance expectations to account for his FMLA leave. In addition, the Court was suspicious about employer’s decision to schedule the sales ride along on such short notice.

Tips for Employers

Even after 20 years of living under the FMLA, employers struggle to implement this intentionally vague, employee friendly law. Frustrated with the time and cost of administration, many employers have turned to third parties to administer their FMLA policies. But employers do not escape liability when service providers misapply the law. Management must be aware of new developments and adjust policies and procedures accordingly.