Employers Have Rights, Too: Eighth Circuit Issues Two Pro-Employer FMLA Decisions

The U.S. Court of Appeals for the Eighth Circuit has issued two decisions just two days apart in favor of employers sued for alleged violations of the Family and Medical Leave Act (FMLA). Each case serves as a reminder that while employers have many obligations and responsibilities under the FMLA, it is not a one-way street. Employees, too, must comply with the FMLA's requirements, and not simply invoke their rights under the law as an absolute shield against accountability for violating company attendance policies. The Eighth Circuit has jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

FMLA The FMLA generally provides eligible employees with up to 12 weeks of unpaid leave during a 12-month period: aEURc for the birth, adoption, or foster care of a child, aEURc to care for a child, spouse, or parent with a serious health problem, aEURc for the employee's own serious health condition that renders the employee unable to perform the functions of his or her job, or aEURc for any qualifying exigency arising out of the fact that one of a number of certain enumerated relatives of the employee is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation. In order to qualify for FMLA leave, among other things, employees must provide their employers with proper notice regarding the need for leave. An employer is prohibited under the FMLA from interfering with an employee's rights or retaliating against the employee for exercising those rights. At the end of FMLA leave, employers are required to reinstate most employees to the same or to an equivalent position. An employer does not, however, have to reinstate an employee if it can show that the employee would not otherwise have been employed at the end of the FMLA leave. Employee Requesting FMLA Leave Still Accountable for Violation of Company Policy In Estrada v. Cypress Semiconductor Inc., No. 09-3005 (8th Cir. Aug. 17, 2010), the Eighth Circuit upheld a lower court's ruling that a employer did not run afoul of the FMLA when it terminated an employee for poor attendance because it would have "made the same decision notwithstanding [the plaintiff's] exercise of her FMLA rights."

The employer in Estrada followed a written attendance policy by which employees accumulated varying points for different types of absences. Once an employee has accumulated a certain number of points, he or she was subject to progressive disciplinary actions. The company did not assign any points for absences scheduled in advance or FMLA-protected absences.
Upon plaintiff Laura Estrada's return from work after an absence subsequent to the company's "Level II" attendance warning, her supervisor informed her that additional attendance problems, including extended unauthorized breaks, would put her job in jeopardy. Estrada took an extra-long break later that day, prompting her suspension. After meeting with Estrada and discussing her attendance issues, the company's human resources department informed her that her employment was terminated because she violated the Level II warning.
Estrada subsequently sued the employer for interfering with her FMLA rights. According to the plaintiff, one of the absences counted in her Level II warning was an FMLA-protected absence and should not have counted against her. The company argued, however, that even if the absence did not count toward the Level II warning, Estrada accumulated enough points to be terminated independent of the Level II warning. In other words, the company could have terminated her for reaching a certain number of absences, not including the potentially FMLA-protected absence.
The district court ruled in favor of the employer and the Eighth Circuit affirmed. "An employee who requests FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave," the appeals court explained. "[A]n employee 'cannot claim protection from the FMLA for disciplinary actionaEUR| as a result of absences that are not attributable to [her] serious health conditions,' [and, thus,] sufficient unexcused absences may justify her discharge under an employer's attendance policy."
The employer was not liable, the Court concluded, because the evidence suggested that the company "would have made the same decision notwithstanding Estrada's exercise of her FMLA rights."
Adequate Notice Required to Trigger Employer's FMLA Duties
In Brown v. Kansas City Freightliner Sales, Inc., No. 09-3324 (8th Cir. Aug. 19, 2010), the Court upheld a lower court's ruling that an employee terminated upon his return to work after a four-day absence could not sustain FMLA claims because he failed to provide adequate notice of his need for FMLA leave.
Plaintiff Donald Brown, employed by the defendant as a service technician for more than seven years, verbally reported to his employer that he hurt his back while on the job and wanted to go home. He called in sick the next four workdays even though he had already used up all authorized sick and vacation leave provided by the company. Brown had previously injured his back on the job and, after completing an injury incident form and visiting an occupational doctor, was released back to work without restriction prior to the date of his subsequent back injury.
The company terminated Brown's employment the day he returned to work, prompting Brown to initiate an FMLA lawsuit based on the employer's alleged failure to reinstate him to his position and for wrongful termination. The district court granted summary judgment in favor of the employer, finding that Brown did not experience a "serious health condition" during the absence period, as required by the FMLA, nor did he provide adequate notice that he was seeking FMLA leave.
Upholding the district court's ruling with regard to the inadequacy of Brown's notice to his employer, the Court never reached the question of whether he had a serious health condition under the statute. "'EmployeesaEUR| have an affirmative duty to indicate both the need and the reason for FMLA leave, and must let employers know when they anticipate returning to their position,'" the Court explained. "Absent the required notice, the employer's duty to provide FMLA leave is not triggered."
Brown had "ample opportunity to inform his employer that his condition was more serious than [his] previous back injuries," the Court noted. In addition, the plaintiff did not submit a written injury report or accept medical attention. He merely called in sick four consecutive workdays without providing any additional information. These factors, together with a lack of evidence showing a connection between the plaintiff's previous back injuries and the injury prompting his four-day absence, led the Court to conclude Brown provided inadequate notice and, as such, the employer's responsibilities under the FMLA were never triggered.
* * *
These decisions should provide some comfort to employers who are well-versed in the FMLA's requirements - both for employers and employees. The Estrada case reminds us that even employees who qualify for FMLA leave can be held accountable for violations of company policies, while Brown reinforces the principle that the employee must do more than simply "call in sick" to notify his or her employer of the need for FMLA leave.
(402) 391-1991 / LoudonT@jacksonlewis.com

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