The United States District Court, W.D. Arkansas, Texarkana Division, has found that weekly calls to an employee on medical leave, from the employee’s supervisor, inquiring as to when the employee would return to work were sufficiently “discouraging or chilling” of the employee’s exercise of rights under the Family and Medical Leave Act (FMLA), that the calls interfered with the employee’s FMLA rights.
The employee alleged that the weekly calls from her immediate supervisor inquiring as to when she would return to work made her feel pressured to return to work while on FMLA leave. The employee qualified for FMLA leave, and the time off had been granted by the employer. Although the employee asked at one point if her job was in jeopardy, apparently the only response that the supervisor provided was that the employee should return to work as soon as possible.
The employer argued that because the employee did not return to work on the date specified by her physician, the employer was justified in making the inquiries, and thus the employee failed to establish her FMLA interference claim. However, the court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." 29 CFR 825.220(b).
It is interesting to note that the court did not discuss 29 CFR 825.311(a), which specifically allows an employer to request periodic status updates while an employee is out on leave. In pertinent part it states: “An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. The employer's policy regarding such reports may not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee's leave situation.” It seems that the court determined, without analyzing further, either that the weekly telephone calls were too frequent or that the employer’s policy did not allow for such weekly telephone calls based upon the particular facts and circumstances of the case. In this regard, although the facts state that the employee was out for back surgery, it is unclear if there was a medical certification from the physician specifying how long the employee would be out on FMLA leave. Without knowing such details, it is difficult to determine whether the court found that weekly telephone calls requesting a status report were per se unreasonable and discouraging to an employee’s right to take leave, or if it was a particular factual situation present in the case. Since this was an appeal from a motion for summary judgment, the court may have only addressed the issue upon which the trial court found; additional facts may have been introduced at trial regarding the interference claim.
What should employers do based upon this case? It is recommended that employers obtain as much information as possible regarding the duration and timing of the FMLA leave prior to the leave being taken, and request that employees provide medical updates and status reports regarding their anticipated return to work date. One approach, if appropriate, is to require such updates every thirty days, although every two weeks, or even more often might be necessary in certain situations. Even if the leave is “open ended,” an employer should regularly follow-up and require updates as to the employee’s anticipated return to work date.
It is also recommended that employers not designate immediate supervisors as the contact person when an employee is out on leave. This should be left to the employer’s Human Resources representative. A supervisor, particularly one who works closely with the employee, may unwittingly cause an employee more concern about his/her job than a more neutral person with whom the employee does not have a daily working relationship. Furthermore, in California, an employer is only entitled to limited medical information about an employee on FMLA, and an untrained supervisor might obtain medical information that the employer is not entitled to have.
Thus, employers should::
1. Be careful about how frequently and under what circumstances contact is made with employees who are on FMLA; further, employers should base the frequency of such contact on what is reasonably appropriate under the circumstances;
2. Have carefully drafted FMLA policies that advise employees of their rights and obligations under FMLA, including specifying how often employees need to report to the employer regarding their anticipated return to work date when on FMLA leave; and,
3. Designate their Human Resources representative as the one responsible for contacting employees on FMLA leave for status updates.
DSkeren
Notes:
Terwilliger v. HOWARD MEMORIAL HOSPITAL, Dist. Court, WD Arkansas 201, Case No. 09-CV-4055, January 27, 2011
http://scholar.google.com/scholar_case?case=12749087681111817538&hl=en&as_sdt=2&as_vis=1&oi=scholarr
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