Employment Law Daily Is getting lunch during intermittent FMLA leave a fireable offense?
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Tuesday, May 31, 2016

Is getting lunch during intermittent FMLA leave a fireable offense?

By Joy P. Waltemath, J.D. Whether or not an employee’s attempt to have lunch with a coworker after taking intermittent leave was an abuse of FMLA leave, the employee plausibly alleged an FMLA retaliation claim for being fired as a result, the federal district court in Maine determined. Allegations that he was approved and certified for intermittent leave, told his supervisors that he was taking leave, was under surveillance by his employer while taking leave, was not permitted to return to work, was suspended before his physician could respond to his employer’s request for additional information, and was then fired were enough to withstand a motion to dismiss (Brady v. Bath Iron Works Corp., May 25, 2016, Torresen, N.). Lunch. After the 26-year-tenure carpenter began suffering from chronic severe depression and anxiety, he sought medical treatment and was certified for intermittent FMLA leave in 2014. Again in 2015 he sought certification after completing his employer’s medical certification form. Just days after that certification was approved, about four hours into his shift, he believed his stress and anxiety were getting the better of him and told his supervisors he would take FMLA leave for the rest of the day. After he clocked out, he ran into a coworker who was leaving, and they decided to get lunch together. Surveillance. Employees in the labor relations department “learned” the employee might be at a local restaurant. His employer then sent two labor relations specialists to observe the employee at the restaurant and take photographs, although they did not approach or speak to him. The employee did not eat after all; the labor relations specialists reported he did drink a beer. That afternoon, the labor relations department faxed a letter to his physician seeking clarification of her “intent” as to his intermittent leave and accusing him of using FMLA leave to spend time at the local bar. Termination. When the employee attempted to return to work the next day, a Saturday, his badge had been deactivated, and company security did not know why so he was not allowed to work. That Monday the employee met with labor relations management to discuss his use of intermittent FMLA leave; he answered questions but was not asked about his mental health condition or how it related to his need for intermittent leave. He then was suspended for “possible FMLA fraud” (before his physician had responded to his employer’s faxed request for more information). Although his physician responded to the faxed request the day following his suspension, the employee was fired within 10 days without his employer ever speaking to him again, or to his physician, about how his use of leave related to his depression and anxiety. FMLA retaliation. Contending that the employee’s resulting FMLA retaliation claims must be dismissed, the employer argued he failed to plausibly allege that he engaged in protected conduct. Allegations that the employee requested intermittent FMLA leave by filling out the employer’s medical certification form, getting the necessary certifications from his primary care physician, using leave after confirming that his FMLA paperwork had been processed, and telling his supervisors that he was leaving for the rest of the day, typically suffice to meet the first element of a prima facie case, noted the court. But he was in a bar. His employer strenuously argued that “FMLA simply does not protect employees who wish to use their FMLA allotment to load free scrap wood, to go to a local bar, or any event not otherwise related to a serious health condition.” Yet whether the employee’s “actions were consistent with the reason for his FMLA leave is a question of fact not properly resolved on a motion to dismiss,” the court pointed out, finding he had sufficiently alleged he received approval for intermittent FMLA leave for depression and anxiety (which his doctor said were partially related to work), and he used his leave to exit work, load his car with scrap wood (expressly permitted by his employer), and socialize with a coworker offsite. He requested and took FMLA leave, and accordingly engaged in protected conduct, concluded the court. (In a footnote the court commented that the employer asked it to take judicial notice of the fact that alcohol is a depressant, but that alone would not resolve the dispute here. The complaint stated the employer alleged that the employee drank a beer but at this point, the court neither could determine that he actually drank a beer nor even that having a beer was inconsistent with his depression and anxiety.) Causation. To establish a causal connection, the employee alleged that his employer conducted surveillance on him during his initial use of intermittent FMLA leave; he was barred from accessing his work site the following day; he was suspended from work before his primary care physician could respond to whether his use of leave was consistent with treating his medical condition; and his employer did not speak to him or his primary care physician concerning how his use of leave related to his medical condition during the investigation that ended with his firing. He also alleged that his work performance during this period was otherwise satisfactory. These facts plausibly alleged a causal connection between the employee’s use of intermittent FMLA leave and his termination. Nor was the court persuaded by the employer’s argument that, because the complaint stated that the employer alleged the employee drank a beer at the lunch, told him he was suspended for possible FMLA fraud, and was fired after an investigation, he had admitted he was terminated for misusing FMLA leave. Those allegations did not amount to an admission that the employee misused his FMLA leave or that he was terminated for misuse, said the court: They simply stated the reason he was given for his termination. Because the employee pleaded sufficient facts to make out a plausible FMLA retaliation claim, he was entitled to discovery to test whether FMLA misuse—or perceived misuse—was the true reason for his termination.

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