Kentucky Employment Law Blog

Supreme Court Limits State Employees' Protections Under FMLA

The Supreme Court has limited state employees' protections under the Family Medical Leave Act (FMLA) in its recent decision, Coleman v. Court of Appeals, No. 10-1016 (March 20, 2012). The Court was predictably divided 5-4 with all five Republican appointees (Roberts, Scalia, Thomas, Kennedy & Alito) voting against the employee, whil all four Democratic appointees (Ginsburg, Breyer, Kagan & Sotomayor) voting in favor of the employee.  

The Court ruled in 2003 in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 1, that states did not have sovereign immunity against damages suits under the FMLA premised on a violation of 29 U.S.C. 2612(a)(1)(C), which regards care for a family member suffering from a "serious health condition." The ruling was premised on the reality that women by far most often took leave from work to care for ailing family members; thus, the Court ruled that Congress had properly abrogated the states' sovereign immunity from damages suits.

The Coleman case involved what the Court majority called the "self-care" provision under 29 USC 2612(a)(1)(D), which allows for unpaid leave for an employee to take care of themself, i.e., recover from their own illness or injury.  The Court majority was utterly unmoved by the acknowledged reality that the FMLA's "self care" provision allowed single parents, who are disproportionately women, to retain their jobs:

       The petitioner’s last defense of the self-care provision is that the provision helps single parents retain their jobs when they become ill.  This, however, does not explain how the provision remedies or prevents constitutional violations. The fact that most single parents happen to be women demonstrates, at most, that the self-care provision was directed at remedying employers’ neutral leave restrictions which have a disparate effect on women. “Although disparate impactmay be relevant evidence of . . . discrimination . . . such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.”  To the extent, then, that the self-care provision addresses neutral leave policies with a disparate impact on women, it is not directed at a pattern of constitutional violations. Because, moreover, it is “unlikely that many of the [neutral leave policies] . . . affected by” the self-care provision are unconstitutional, “the scope of the[self-care provision is] out of proportion to its supposed remedial or preventive objectives.”   

Robert L. Abell
www.RobertAbellLaw.com 

FMLA Violated By Employee's Termination, Sixth Circuit Rules

The rights of a long-term, 36-year employee under the Family Medical Leave Act (FMLA) were violated and he was wrongfully terminated, the Sixth Circuit has ruled in Thom v. American Standard, Inc, Nos. 09-3507/3508 (6th Cir., January 20, 2012).  The court affirmed a district court judgment.

Carl Thom began working for American Standard in June 1969. He requested FMLA leave from April 27, 2005, until June 27, 2005, on account of a non-work related shoulder injury and related surgery. American Standard approved Thom's FMLA leave through June 27, 2005, in writing.  Thom progressed well following surgery, and his doctor released him to return to "light duty" work on May 31 and further advised that Thom probably could be fully released on June 13, two weeks before the date initially expected.  

Thom tried to resume work on May 31, but the company sent him home, explaining that it did not allow "light duty" work to employees with non-work-related injuries. On June 14, the company contacted him because he did not appear for work on June 13. Thom explained that he had suffered a setback with his shoulder and said he would get a doctor's note explaining. On June 18 Thom delivered to the company a doctor's note requesting that his leave be extended to July 18. However, American Standard had already terminated his employment, because it had counted June 13-17 as unexcused absences.  

The district court ruled that Thom's termination unlawfully interfered with his rights under the FMLA. Its judgment awarded Thom $104,354.85 in back pay, $2,732.90 in costs and $99,960 in attorney's fees. It also ordered further relief to protect Thom's pension and retirement benefits.

The Sixth Circuit framed the issue as whether American Standard had properly informed Thom of the method by which it calculated his FMLA leave time. American Standard claimed that the "rolling" method of calculation applied, which meant that Thom's FMLA leave expired June 13. The "calendar" method allows for 12 weeks of FMLA leave in each calendar year, and this method would have extended Thom's FMLA leave through at least July 14.

The Sixth Circuit rejected American Standard's claimed reliance on the "rolling" method of calculation, explaining as follows:

• At no time throughout the FMLA process did the company mention to Thom that his leave time would be governed by a "rolling" 12-month period. 
  
  
• Thom was only notified that American Standard had accelerated his return-to-work date on June 14, after it had already elapsed the day before.
  
  
• The first time Thom was given actual notice that the Company was using a "rolling" method requiring him to return to work on an earlier date was after he filed his lawsuit in this case when the defense lawyers raised the rolling method as a defense.

The Court concluded that "the Company's post-lawsuit defenses that the rolling method should be used to fix the date or that any date earlier than June 27 should be used are unreasonable" and affirmed the district court's ruling on this point.

Robert L. Abell
www.RobertAbellLaw.com 

 

FMLA Leave Entitlement May Be Established by Combination of Expert and Lay Testimony

Is a doctor's note and an employee's testimony that she remain sick and unable to work enough to establish an employee's entitlement to leave under the Family Medical Leave Act (FMLA)? "Yes" answered the United States Court of Appeals for the Third Circuit in Schaar v. Lehigh Valley Health Services, Inc., No. 09-1635 (March 11, 2010).

Rachel Schaar worked as a medical receptionist for Lehigh Valley and was diagnosed by her doctor, Dr. Twaddle, with a urinary tract infection and treated for low back pain, fever, nausea and vomiting. Dr. Twaddle wrote a note stating that Schaar would be unable to work for two days, Wednesday, September 21 and Thursday, September 22, which Schaar taped to her supervisor's door. Although she did not seek further treatment from Dr. Twaddle, Schaar testified that she remained too ill to work until the following Tuesday, missing a total of four days of work because of her illness. Two weeks later she was fired, allegedly because she did not call them properly to report her illness (taping Dr. Twaddle's note to her supervisor's door was deemed insufficient) and for allegedly poor work performance.

Schaar filed a wrongful termination suit under the FMLA claiming unlawful discrimination and interference with her rights under the FMLA. The FMLA allows an eligible employee to take leave for a "serious health condition" which must include a "period of incapacity ... of more than 3 consecutive calendar days" and includes treatment by a healthcare provider and a "regimen of continuing treatment under the supervision of the healthcare provider." 29 C.F.R. sec. 825.114(a). A "regimen of continuing treatment" includes "a course of prescribed medication." 29 C.F.R. sec. 825.114(b).

Dr. Twaddle's note established that Schaar was incapacitated from work for two days so the question was whether her testimony that she remain sick for three more days was sufficient to establish her entitlement to FMLA leave. The court ruled that a commendation of expert and lay testimony could establish an employee's entitlement to FMLA leave because of a "serious health condition." Therefore, the combination of Dr. Twaddle's note, which covered two days, and showers own testimony, which covered two more days, was enough to show that Schaar suffered the serious health condition for which she was entitled to take FMLA. leave. The United States Court Of Appeals for the Eighth Circuit reached a similar conclusion in Rankin v. Seagate Technologies, Inc., 246 F.3d 1145 (8th Cir. 2001). 

Robert L. Abell
www.RobertAbellLaw.com 

Retroactive Termination of Medical Insurance Violates FMLA

The Family Medical Leave Act (FMLA) prohibits an employer from interfering with or retaliating against an employee who asserts or exercises her rights to take leave from work under the FMLA. Both these prohibitions were violated by the employer's retroactive termination of an employee's medical insurance the Seventh Circuit has ruled in Ryl-Kuchar v Care Centers, Inc., No. 08-2688 (May 11, 2009).

Kathleen Ryl-Kuchar had worked for Care Centers, Inc. for over 17 years when she became pregnant with triplets in late 2002. She worked all the way up to delivery on July 17, 2003, although during the later part of her pregnancy, she worked from home and in some weeks less than 35 hours per week. Ryl-Kuchar returned to work right after delivery but began FMLA leave a short time later. A few weeks later, she elected to terminate her employment effective October 1.

About six weeks after resigning, Ryl-Kuchar learned that her health insurance had been retroactively cancelled on June 15 -- just at the point where, as the court observed, she really began "piling up" the medical bills related to her pregnancy. The employer asserted that it had retroactively cancelled her medical insurance on the grounds that she had become ineligible for the coverage by having worked for less than 35 hours some weeks prior to delivery.

Ryl-Kuchar sued under the FMLA and claimed that the retroactive cancellation of her medical insurance was based on her decision to take FMLA leave. She presented evidence "that Care Centers was concerned with rising health care costs, as evidenced by an article in the company newsletter," and that the claim she had become a part-time employee was groundless, since she was a salaried employee and had kept, at all times, the same rate of pay. Only after she took FMLA leave, Ryl-Kuchar pointed out, was there an audit of her payroll records and a claim of "mistake" regarding her eligibility for medical insurance. This proof, the court ruled, was enough to show that Care Centers retaliated against Ryl-Kuchar for taking FMLA leave by retroactively cancelling her medical insurance.

The court also ruled that Ryl-Kuchar had easily show unlawful interference with her rights under the FMLA. The court explained that the FMLA requires that an employee on FMLA leave is "entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave."

Robert L. Abell
www.RobertAbellLaw.com

Retaliation Against Employee Taking Family Medical Leave Held Unlawful

Retaliation against an employee for taking leave under the Family Medical Leave Act (FMLA) is unlawful, the Sixth Circuit has ruled in Bryant v. Dollar General Corp. (No. 07-5006 decided August 15, 2008).   The court affirmed a jury verdict for a fired employee.

The employer, Dollar General, argued that the "FMLA does not bar an employer from firing an employee because that employee took FMLA leave,"  a contention that was soundly rejected.  First, the "overwhelming consensus of the case law .. as well as the nature of the statutory scheme and the FMLA's legislative history" weighed "strongly in favor of rejecting" Dollar General's argument.  Second, "any 'right' to take unpaid leave would be utterly meaningless if the statute's bar against discrimination failed to prohibit employers from considering an employee's FMLA leave as a negative factor in employment decisions."  Third, adopting Dollar General's position would run counter to principles of statutory construction that caution against absurd results. 

Robert L. Abell
www.RobertAbellLaw.com