By: Ogletree Deakins

The Americans with Disabilities Act specifically includes a “safe harbor” provision for individuals no longer abusing drugs and alcohol, specifically including individuals who have successfully completed a supervised rehabilitation program and are “no longer engaged in the illegal use of drugs.” While the Courts have declined to adopt a bright-line rule as to the number of days of sobriety required to remove an individual from being viewed as currently engaged in the use of drugs or alcohol, the 10th U.S. Circuit Court of Appeals has ruled that an individual who had completed a 28-day rehabilitation program would not necessarily be viewed as drug-free for purposes of the ADA. Mauerhan v. Wagner Corp., 10th Cir., Nos 09-4179 and 4185, April 19, 2011.

Peter Karl Mauerhan began his employment with Wagner Corporation from 1994. On June 20, 2005, Mauerhan tested positive for drugs at work, and was fired for violating the company’s drug policy. He was told that if could return to the company if he “got clean.” Between July 6 and August 4, 2005, Mauerhan was in an inpatient drug rehabilitation program. Upon his completion of the program, a counselor described Mauerhan’s recovery prognosis as “guarded.”

The day after completing the program, Mauerhan attempted to return to work. He was told that Wagner would re-employ him, but that he would not receive the same level of compensation as he had earned previously, and would not be servicing the same client accounts as before. Mauerhan refused to accept these terms and subsequently filed a lawsuit against Wagner, claiming a violation of the ADA based upon his status as a recovering addict. Wagner responded to the lawsuit by arguing that Mauerhan was a “current user” within the meaning of the ADA when he asked to be rehired and, therefore, was not a qualified individual with a disability for purposes of the Act. The district court agreed, and granted summary judgment in favor of the company. That decision was upheld by the Tenth Circuit on appeal.

The ADA prevents employers from discriminating against a “qualified individual” on the basis of a disability. For purposes of the ADA, an employee is not a qualified individual if he or she is engaging in the illegal use of drugs. However, the ADA specifically exempts from this group individuals who are participating in or who have successfully completed a supervised rehab program and are no longer currently engaging in such use (“the safe harbor provision”). While the courts have not fully defined the scope of the “currently engaging” exception, in this case, the Tenth Circuit specifically held that one drug-free month was insufficient to trigger the safe harbor provision for Mauerhan. It based that holding on its view that Mauerhan’s most recent active drug use (30 days prior to his application for reemployment) was sufficiently recent to justify Wagner’s concern that the drug use may remain an ongoing problem.

The Court further held that mere participation in a rehabilitation program is not enough to trigger the protections of the ADA. While such participation can bring an individual closer to qualification for the ADA’s safe harbor provision, that individual’s period of non-use of drugs must be sufficient to indicate that the drug use is no longer an ongoing problem.

In this case, Wagner presented evidence that Mauerhan’s prognosis for recovery from his addiction was “guarded” at the time that he requested to be re-hired, and they provided testimony from an addiction specialist that approximately three months of treatment would have been necessary for an addict like Mauerhan to reach a “threshold of significant improvement” in his addiction. Maurenhan failed to rebut this information, relying solely upon his participation and successful completion of the 28-day program. The Court found that because Mauerhan failed to rebut Wagner’s factual assertions, the Company was entitled to summary judgment

This case – like similar cases decided by other appellate courts – fails to provide a bright line test for when an individual falls within the safe harbor provision. However, the Tenth Circuit has indicated that an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, and should take into account the circumstances of the individual’s drug use and recovery, and whether those circumstances justify a reasonable belief by the company that the person’s drug use is no longer a problem.

The Court provided some factors to be reviewed in such a determination, including the severity of the addiction, the relapse rates for the drug(s) being used, the level of responsibility entrusted to the employee, the employer’s performance requirements, and the employee’s past performance record. Before making any decision related to an individual in rehab, an employer should review these factors, in order to assure compliance with the ADA.
 

The 8th U.S. Circuit Court of Appeals has upheld summary judgment against a bank teller who claimed that she was constructively discharged when she left her job on the last day of her pregnancy-related medical leave. Trierweiler v. Wells Fargo bank, 8th Cir., No. 10-1343, April 8, 2011.

An individual can support a claim of constructive discharge by demonstrating that a reasonable person would have found the employment conditions intolerable, and that the employer either intended to force that person to quit, or could reasonable have foreseen that she would do so. Kimberli Trierweiler began working for Wells Fargo Bank in October 2006 as a teller in the bank’s Watertown, South Dakota branch. The handbook that Trierweiler received at the outset of her employment indicated a “regular and dependable attendance” was an essential function of her job, and that excessive absences from work would lead to discipline, up to and including termination. The handbook also provided methods for reporting employment issues, including concerns related to accommodations for medical issues.

Bank employees received 160 hours (20 days) of paid time off (PTO) each year, and could exercise that time off after 30 days of employment. Between her start date and the end of 2006, Trierwetler used her pro rata allotment of PTO, along with four and a half unpaid additional days of absence.

In December 2006, Trierweiler informed her supervisors that she was pregnant. Although she was not eligible for Family and Medical Leave (not having worked for the Bank for the requisite one year), she would have been entitled to maternity leave under a short-term disability plan, which had a 5-day “waiting period” during which Trierweiler would have had to use PTO days or unpaid leave.

By mid-April 2007, Trierweiler had used eleven and a half days of PTO, with three additional days scheduled before the end of April, amounting to 120 hours of her available 160 hours of PTO for 2007. None of that time was related to her pregnancy. During a meeting with her supervisor at that point, Trierweier was warned about her frequent absences.

On May 9, Trierweiler took another PTO day to stay home with a sick child. Following that, Trierweiler was told that if she had another absence, she would receive a written warning. On May 14, Trierweiler left a phone message for her supervisor, stating that her doctor had prescribed a week of pregnancy-related medical leave. According to Trierweiler, her supervisor responded with a message that said that “This isn’t going to work, you taking time off.” Trierweiler did not have any further direct contact with her supervisor or any HR person on the issue, but testified in her subsequent lawsuit that she felt that the message meant that she no longer had a job.

While Trierweiler was on her medical leave, her supervisor sought advice from HR. It was decided that Trierweiler should receive a written warning for her previous absences (not including the current leave), but that a company program, called “WorkAbility” would be explored for temporary accommodations for the current and any future pregnancy-related leaves. Two days later, on the final day of her week-long leave, Trierweiler drove through the bank’s drive-through lane, handed her keys to the teller, and stated that she was “done.” She followed this with a phone message to her supervisor that she had done so, and asked for her personal office items.

Trierweiler brought a federal court action under Title VII’s Pregnancy Discrimination Act, claiming that she had been constructively discharged. The lower court granted summary judgment in favor of the Bank, and that decision was upheld by the Eighth Circuit. In spite of Trierweiler’s argument that an alleged statement by her supervisor – that she couldn’t miss additional work without being fired – was designed to force her to quit, the Eighth Circuit pointed to the company’s decision to seek assistance from WorkAbility to explore possible accommodations for the situation. According to the Court, this showed an intent to maintain an employment relationship with Trierweiler, not an attempt to force her to quit, or to create an intolerable condition that would make it impossible for her to continue to work there.

Trierweiler never spoke with HR, utilized any resources provided in the handbook for problem resolution, or asked for clarification of any of the phone messages left for her about her absences. As such, Trierweiler failed to provide an opportunity for the company to remedy the issues of which she was complaining. The lesson here is that Court’s are hesitant to find constructive discharge when an employee does not allow the employer a reasonable chance to work out the problem. Further, the Bank’s efforts to find a resolution to the problem, and its documentation of that effort, helped to successfully defend against this claim.
 

In July 2008, the Department of Labor’s Wage and Hour Division (WHD) published proposed rules that would change several regulations issued under the Fair Labor Standards Act (FLSA) and the Portal-to-Portal Act, including tip credit, fluctuating workweek, compensatory time, commuting, and other provisions. The proposed rules were not finalized during the previous Administration; however, a final rule was published in the Federal Register on April 5, 2011, and will take effect in 30 days.

One of the primary changes is an update to the regulations regarding “tip credit” to reflect increases in the minimum wage. Tip credit means that an employer can pay to a tipped employee an hourly wage less than the legal minimum, so long as a combination of that less-than-minimum wage and the person’s tips equals at least the legal minimum wage. The final rule raised the maximum federal tip credit from $4.42 an hour to $5.12.

Other changes made include clarification of certain overtime exemptions for employees engaged in firefighting activities (allowing such employee to engage in a certain amount of non-exempt work), as well as an adoption of the youth opportunity wage provision, which allows an employer to pay a less-than-minimum wage to an employee under the age of 20 for the first 90 calendar days of employment.

While the DOL implemented some changes in the new rules, the Department’s unwillingness to make certain other expected changes is what seems to be getting the attention of employers and employees. Notably, the DOL declined to adopt changes on several existing regulations including those on compensatory time, fluctuating workweek, and meal credits. It also refused to exempt a service manager, service writer, service advisor or service salesman from overtime.

According to Al Robinson, formerly the acting Administrator of the Wage and Hour Division (WHD) of the DOL (prior to joining the Washington DC office of Ogletree Deakins), “to say that the final rule is ‘narrower’ than the rule proposed in July 2008 is an understatement because it is a missed opportunity to add some clarity, especially on the topic of the fluctuating workweek.” In the fluctuating workweek, a salaried non-exempt employee’s hours vary from week to week. The esoteric issue of concern was whether a bonus or other premium payment should invalidate the fluctuating workweek method by being included in the calculation of the employee’s “regular rate” of pay. While the proposed regulation would have provided that a bonus or premium payment does not invalidate the fluctuating workweek method of compensation, the final rule restores the current situation in which a fixed salary amount is paid as straight time for hours worked, and a bonus or premium payment is calculated and paid separately. Unfortunately, however, the final rule does nothing to illuminate generally or further explain the fluctuating workweek, a concept in dire need of explication.
 

The ADA Amendments Act (ADAAA) was signed into law by President George W. Bush on September 25, 2008. On March 25, 2011, and after review of over 600 public comments, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the enforcement of that Act. Check the EEOC’s website at www.eeoc.gov for a summary of the provisions of those regs (Fact Sheet on the EEOC’s Final Regulations).

The Final Regulations are consistent with Congress’ purpose of the ADAAA: to "make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA." The Final Regulations and the revised Interpretive Guidance are intended to refocus courts on the issues of prohibited conduct and reasonable accommodation; the question of whether an individual meets the definition of disability is going to be a lower hurdle when determined in accordance with the new regulations.

The primary emphasis of the Final Regulations is on the "regarded as" prong of the definition of the term “disability.” Most claims of discrimination now will likely be evaluated under the "regarded as" prong with the first two prongs (“actual disability” and “record of a disability”) applying primarily in cases where the individual is seeking a reasonable accommodation. As noted by the EEOC in the revised Interpretive Guidance, Congress expected the first and second prongs of the definition of disability to be used "only by people who are affirmatively seeking reasonable accommodations" and that "[a]ny individual who has been discriminated against because of an impairment – short of being granted a reasonable accommodation or modification – should be bringing a claim under the third prong of the definition."

According to Thomas Bright, a shareholder in Ogletree Deakins’ Greenville, South Carolina office: "The EEOC, in revising the Final Regulations, was attempting to take into consideration the often competing interests of various stakeholders. Many employers and business organizations that submitted comments to the EEOC opposed the inclusion of a per se list of conditions that would always be considered disabilities. Employees and various advocacy groups wanted to see an expansion in the list of per se disabilities. The EEOC steered a middle ground by including a nonexhaustive list of examples of conditions that would likely be considered disabilities, but retained the concept of individualized assessment."

The Final Regulations set forth specific “rules of construction” derived from the ADAAA and its legislative history, and which will be used by courts as guidelines when making determinations regarding disability discrimination cases. Those rules include: a broader construction for the term “substantially limits”; requirement of an “individualized assessment” when determining whether an impairment limits a major life activity; and a statement that an episodic/in remission impairment is a disability if it would substantially limit a major life activity when active. The Final Regulations and the revised Interpretive Guidance make it clear that courts will now spend less time determining coverage under the Act (that is, whether an impairment is actually a disability), and more time determining whether a discriminatory act occurred. The anticipated end result of this refined focus is that more disability discrimination cases will go to trial and fewer will be dismissed on summary judgment.
 

As the first anniversary of the Patient Protection and Affordable Care Act approaches on March 23, five district courts have issued final judgments on the issue of whether the Act itself is constitutional. The score is 3-2 in the federal government’s favor, but all five cases are on appeal at this time. The principal issue in those cases is the Act’s “individual mandate,” which requires most individuals to purchase health insurance beginning in 2014 or to pay a penalty for not doing so.

Jennifer Gokenbach, from Ogletree Deakins’ Denver office, has blogged a well thought-out summary of the issues being faced by the courts – and ultimately by employers – and cites to an argument developed by our colleague, Tom Christina, in Ogletree’s Greenville, SC office. Tom’s theory, which he debuted at a presentation at the American Enterprise Institute (AEI) late last year, is a “sovereignty-based” argument, which recently has been cited in a number of blogs and seems to be gaining some traction as a viable and important argument in the discussions involving the cases now on appeal.

If you’re interested in more detail about these issues or Tom’s theory, check out Jennifer’s blog at www.coloradoemployerslaw.com, where you can find links to Tom’s powerpoint pages on the topic, and a link to the video of his presentation at the AEI.

 

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to prohibit civilian employers from discriminating against employees engaged in military service, and states that employees who perform military service “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of that service. In a case of first impression, the 5th U.S. Circuit Court of Appeals has held that the language of the statute does not create a cause of action for “hostile work environment” against military service members. Carder v. Continental Airlines, 5th Cir., No. 10-20105, March 22, 2011.

In a case originally filed in 2009, a group of Continental airline pilots alleged various violations of the USERRA, including allegations that they had experienced a hostile work environment on the basis of their military service. The lower court recognized that the USERRA “expressly prevents the denial of benefits of employment to members of the uniformed service by their employers.” In spite of that, the court said that “under a plain language analysis, the scope of this protection does not include safeguarding from a hostile work environment.” The plaintiffs appealed the issue, and the Fifth Circuit upheld the decision.

In its analysis, the Fifth Circuit pointed to the language of the statute itself, citing the definition of the term “benefits of employment” which, under the USERRA, includes any “advantage, profit, privilege, gain, status, account or interest (including wages or salary. . .)” associated with employment. Based upon that language, the Court found that the term “benefits of employment” does not include the absence of harassment, hostility, insults or other similar words or comments.

The Court also cited the legislative history of the USERRA, and the fact that other anti-discrimination statutes, including Title VII and the ADA, specifically protect the “conditions” of an individual’s employment, which has been interpreted by the Supreme Court to include more than the benefits and remuneration associated with employment. The USERRA contains no such language, even though that Act was passed after the Supreme Court’s reference to such “conditions,” leading the Court to believe that the Act was not intended to provide for a hostile work environment claim to the same extent as Title VII and other anti-discrimination statutes containing that phrase. According to the Fifth Circuit, “Congress intended to create a somewhat more circumscribed set of actionable rights under the USERRA.”

This decision does not affect in any way the protections of the USERRA for employees who are members of the military, nor does it preclude those employees from filing claims for constructive discharge, should their employment become so intolerable that they are forced to leave a job. According to the Court, “nothing in this opinion alters the ability of service members to sue under the USERRA for the denial of contractual benefits of their employment on the basis of military status. . . . All that we hold is that service members may not bring a freestanding cause of action for hostile environment against their employers.”
 

Last month, employers’ attention was focused on the settlement of a matter in which the NLRB originally had announced plans to prosecute a complaint brought by its Connecticut regional office regarding the termination of a union member/employee who had posted negative remarks about her supervisor and her employer on her personal Facebook page. The employee had been fired specifically for posting the derogatory comments. After investigating that firing, the regional office determined that the postings were “concerted activity” which was protected by federal law, and that the employee’s discharge was a violation of Section 7 of the National Labor Relations Act. It also determined that the company’s internet policy was overly restrictive to the extent that it precluded employees from making any disparaging remarks when discussing the company or its supervisors. Both issues were settled, with the company agreeing to a revision of its internet policies to ensure that they did not restrict employees’ rights to communicate freely about working conditions, and an agreement from the company not to fire individuals for engaging in such activity.

Within weeks of that settlement, the NLRB issued another opinion – this time involving an employee who posted derogatory comments about his employer after his termination. Stephens Media, LLC d/b/a Hawaii Tribune-Herald and Hawaii Newspaper Guild Local 39117, Communications Workers of America, AFL-CIO, 356 NLRB No 63, confirming order issued February 14, 2011. In that case, an Administrative Law Judge issued a decision finding that an employer had violated the NLRA by taking certain actions, including “disparately and discriminatorily enforcing its security access policy against the Union; discriminatorily prohibiting employees from wearing buttons and armbands in support of discharged or suspended employees; and promulgating and maintaining a rule prohibiting employees from making secret audio recordings of conversations in response to protected activity.” The same ALJ also ruled that the company violated the Act by suspending and discharging certain employees.

The issue of interest here is the fact that after the ALJ ordered the company to reinstate the discharged individuals, the company argued that one of the individuals should not be returned to work because of negative blog postings that he had made after his employment termination. To support that argument, the company cited the Supreme Court’s long-standing 1953 decision referred to as the Jefferson Standard case. However, in that case, the question was whether an employer could lawfully terminate employees for statements made during the individuals’ employment, when those statements disparaged the company’s products. There, the Supreme Court held that the terminations were legal because employees owed a “duty of loyalty” to the employer, and that the disparaging remarks concerned “the very interests which the attackers were being paid to conserve and develop.” The Jefferson Standard case also has been cited for the premise that if an employer becomes aware of such pre-discharge conduct after an unlawful discharge/order to reinstate, back pay may be cut-off and reinstatement denied to the employee on the ground that such conduct, if known, would have supported the employee’s firing.

The NLRB distinguished the Jefferson Standard case from the present situation. Here, the derogatory remarks occurred post-discharge, after it already had been determined that the discharge was unlawful. The focal issue for the NLRB was whether the employee’s post-discharge remarks could form the basis of a denial of reinstatement or could cut-off a claim for back pay. The NLRB says that they cannot, stating that, “[s]imply put, employees who are unlawfully fired . . . often say unkind things about their former employers [after the fact].” According to the NLRB, employers who violate the law should not be permitted to escape a full remedy for the effects of their unlawful actions based on the fired employees’ “natural human reactions” to those actions.

This case differs from the Connecticut case, where the individual was fired for the derogatory Facebook posts, which ultimately were considered to be protected concerted activity. In the Hawaii Tribune-Herald case, the employer was found to have unlawfully terminated an employee, who then engaged in the derogatory blogging, which the company then attempted to use to block reinstatement of employment. While the two cases are different, the moral-of-the-story for employers is similar: do not assume that because the tenor, the substance, or the timing of internet communications is objectionable to the company, those communications can form the basis of adverse employment decisions regarding employees or former employees.
 

The U.S. Supreme Court has held, by unanimous opinion, that an employer may be held liable for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on the “discriminatory animus” of an employee who influenced, but did not make, an ultimate employment decision. In interpreting the so-called "cat’s paw" theory of liability, the Court declined to adopt the approach suggested by the employer: that a decision-maker’s independent investigation and rejection of an employee’s allegations of discriminatory animus should negate the effect of any prior discrimination in subsequent actions against that employee. Instead, the Court held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." Staub v. Proctor Hospital, No. 09-400, U.S. Supreme Court (March 1, 2011).

Vincent Staub was employed by Proctor Hospital as an angiography technologist, and is a veteran member of the U.S. Army Reserve. Staub’s immediate supervisor (Mulally), allegedly was hostile to Staub’s military obligations, often scheduling Staub to work on the weekend rotation, which created conflicts with his military drill schedule. According to Staub, Mulally also scheduled him for extra shifts so he could “pay back” his co-workers for making everyone else having to “bend over backwards” to cover his Reserve absences. Staub reported the problem to his department head (Korenchuk), without success. In fact, Korenchuk also allegedly made similar comments about Staub’s reservist duties, characterizing them as a “waste of taxpayers money."

In January of 2004, Staub received a Corrective Action form from Mulally. In April, Korenchuk informed Proctor Hospital’s vice president of human resources Linda Buck, that Staub had violated the January Corrective Action. Relying on Korenchuk’s accusation, Buck fired Staub. Staub filed suit against the Hospital claiming that his discharge was motivated by hostility to his military status, in violation of the USERRA. Specifically, Staub argued that while Buck was not hostile to his military obligations, Mulally and Korenchuk (who were hostile) influenced Buck’s ultimate employment decision. A jury found in Staub’s favor. The Seventh Circuit Court of Appeals reversed, ruling that Buck was not wholly dependent on the advice of Korenchuk and Mulally and, therefore, that the decision was not based upon Staun’s military status.

The issue before the Supreme Court was under what circumstances an employer may be held liable if the company official who makes an adverse employment decision has no discriminatory animus, but is influenced by previous company action that is the product of discriminatory animus in someone else. In deciding this issue, the Supreme Court pointed out that under the USERRA, employers are prohibited from engaging in certain employment actions if an employee’s membership in the uniformed services "is a motivating factor in the employer’s action." Staub argued that although Buck was not motivated by discriminatory animus in firing him, Proctor Hospital should be responsible because Mulally and Korenchuk acted with discriminatory animus in placing an unfavorable entry on his personnel record. Proctor Hospital argued that an employer is not liable unless the de facto (or actual) decision-maker has a discriminatory animus.

The Court held that Mulally’s and Korencuck’s discriminatory intent was sufficient for liability against the Hospital under the USERRA. In rejecting Proctor Hospital’s interpretation of USERRA as "implausible," the Court noted that the employer’s view would lead to the “improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment actions in that official and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action."

Based upon that rationale, the Court concluded that the presence of an independent investigation does not shield an employer from liability where the investigation took into account a supervisor’s biased report. According to the Court, in such circumstances, the employer is at fault “because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." Because there was evidence that Mulally’s and Korenchuk’s actions were motivated by hostility toward Staub’s military obligations, and because there was evidence that Mulally’s and Korenchuk’s actions were causal factors underlying Buck’s decision to fire Staub, the U.S. Supreme Court reversed and remanded, asking the Seventh Circuit to determine whether a new trial was warranted.

Employers should recognize the importance of this case in the disciplinary/decision-making process. When supervisors act in ways that might suggest discriminatory motives, those actions create unnecessary risks of litigation and possible liability for employers. Of note is the fact that in this case, the decision-maker did not do an independent investigation but instead, relied upon information provided by individuals with ulterior motives. Additional investigation or review of the circumstances could have provided a layer of “good faith” between the ultimate decision-maker and the discriminatory animus of Staub’s supervisors. According to the Court, “if an employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action . . . then the employer will not be liable."
 

Most employers recognize that the Family and Medical Leave Act (FMLA) prohibits them from denying, restraining, or interfering with an employee’s rights to qualified leave. Last week’s Update addressed a situation in which an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with that employee’s FMLA rights. (Terwilliger v. Howard Memorial Hospital). In contrast, this week’s case involves a company whose repeated but unanswered calls to an employee regarding his request for FMLA leave formed the basis of that company’s successful motion for summary judgment in the case. Righi v. SMC Corp. of Am., 7th Cir., No. 09-1775, 2/14/11.

Robert Righi worked as a sales representative for SMC Corporation’s Aurora, Illinois office. Righi worked primarily from his home in Henry, Illinois, but was expected to check in with his sales manager, Louis King, on a daily basis. Righi lived with his elderly mother, an insulin-dependent diabetic who often required medical attention, and a roommate. On occasion, Righi requested vacation time off in order to care for his mother. He made these requests to King by e-mail, consistent with SMC’s policy that required an employee to obtain prior approval from a supervisor before taking leave. The Company’s attendance policy stated that an employee’s failure to report for work for two consecutive days without notifying a supervisor was grounds for termination.

Righi was scheduled to attend a two-week training session in Indianapolis from July 9 through July 21, 2006. On July 11, while at the session, Righi received a phone call informing him that his mother had gone into a diabetic coma. Righi told a co-worker that he was leaving to return home, and asked the co-worker to pass along the information. By the time that Righi had completed the four-hour drive to his home, his mother had stabilized. At no time on that day did Righi contact King, although King made numerous unanswered calls to Righi’s cell phone, which had been switched off.

The next morning, Righi sent an e-mail to King, explaining that he had left the training session to attend to his mother. In that e-mail, he asked for “the next couple of days off.” Upon receiving the e-mail, King attempted to reach Righi, via his Company cell phone and home phone, but without success. King did leave at least one qrequest for a call back with Righi’s roommate, who passed that request to Righi. Righi did not return to work – not did he contact King again – until July 20, nine days after leaving the training session. Righi was fired for violation of the Company’s leave policy. Righi filed a lawsuit alleging violation of the FMLA. The district court granted summary judgment in favor of SMC, and that decision was upheld by the 7th U.S. Circuit Court of Appeals.

Once an employee invokes his rights under the FMLA by alerting his employer to the need for leave, the employer has the burden to take certain affirmative steps to process the leave request. The employer has a duty to make further inquiry if additional information is needed in order to process the request. In this case, there is no dispute that SMC attempted to carry that burden to inquire further – King’s numerous phone calls to Righi’s cell phone and home phone were documented, but were not answered for nine days, far longer than the two days allowed under SMC’s policy. According to the Court, “Righi’s failure to respond to these calls or otherwise contact his employer dooms his FMLA claim.”

While employers have specific obligations under the FMLA which are not obviated by this decision, employers also are entitled to notice about the anticipated timing and duration of a requested leave under the FMLA. Without such notice, Righi was not entitled to FMLA protection for his absence, and his termination was appropriate. According to the Court, if an employee is unable to determine how much leave will be needed, “the employee must at least communicate this fact to the employer with an estimate of the likely duration of the requested leave.” However, employers also should not overlook the fact that the primary underpinning for this decision was SMC’s persistent efforts to reach Righi to clarify his request for leave.
 

Under the Family and Medical Leave Act (FMLA), an employer is prohibited from denying, restraining, or interfering with an employee’s rights to qualified leave. One federal court recently found that an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with the employee’s FMLA rights. Terwilliger v. Howard Memorial Hospital, WDAK, No. 09-CV-4055, January 27, 2011.

The FMLA provides to eligible employees up to 12 weeks of unpaid leave for qualifying conditions, and precludes employers from interfering with an employee’s rights under the Act. Under the regulations associated with the Act, interference includes “discouraging” an employee from using FMLA leave.

Regina Terwilliger was employed as a member of the housekeeping staff at Howard Memorial Hospital in November 2008 when she applied for FMLA leave. Her application was granted on November 26, 2008; Terwilliger underwent back surgery on January 29, 2009. During her recovery, Terwilliger received weekly phone calls from her immediate supervisor, asking for a return to work date. According to Terwilliger, she felt “pressured” into returning and, in fact, during one call, asked her supervisor if her job was in jeopardy. The supervisor simply replied that Terwilliger should return to work “as soon as possible.” Terwilliger returned to work on February 16, 2009, less than three weeks after her surgery.

In October and November, 2008, four Hospital employees had money stolen from their desks or lockers. In December, Hospital management placed a camera in one office area. On March 9, 2009, in spite of the fact that Terwilliger was not assigned to clean that particular office, she was caught on tape opening a desk drawer, looking into it, and closing it without removing anything from the drawer. She then was terminated, along with another housekeeping employee who also was caught on tape removing something from the desk drawer and placing it into her pocket.

Terwilliger filed a lawsuit claiming violation of FMLA. She alleged that she was denied the full benefit of her leave, because she was pressured to return to work after her surgery. She also claimed that she was fired in retaliation for taking FMLA leave. The hospital filed a motion for summary judgment, arguing that Terwilliger was released by her doctor to return to work, and that she was not deterred from taking her full 12-week FMLA leave. It also argued that its reason for firing Terwilliger was based upon a legitimate business reason – the violation of its policy against stealing.

In spite of Terwilliger’s protests that she had not stolen anything and that, therefore, the Hospital retaliated against her by firing her, the district court held that the relevant inquiry was whether the Hospital’s articulated reason for Terwilliger’s termination was a pretext for retaliation, and not whether Terwilliger actually did what she was accused of doing. The court granted summary judgment on the retaliation claim. However, it denied summary judgment on the interference claim, holding that the supervisor’s weekly phone calls to Terwilliger may have discouraged her from fully exercising her rights under the FMLA. Therefore, a jury will have to decide that claim.

Employers should understand the administrative complexities of the FMLA, and must recognize the limitations that the Act imposes on employers. While there is no prohibition on obtaining information related to the anticipated length of a leave under the FMLA, it is unwise to over-communicate requests to return to work which, as seen in this case, could be viewed as possible interference with an employee’s rights.