Pension & Benefits News Marking an employee’s absences as unexcused instead of as preapproved FMLA leave may have been unlawful interference
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Friday, April 10, 2020

Marking an employee’s absences as unexcused instead of as preapproved FMLA leave may have been unlawful interference

By Pension and Benefits Editorial Staff

An employee discharged for excessive absenteeism after her employer marked certain absences as unexcused rather than as preapproved intermittent FMLA leave advanced her FMLA interference claim, but her FMLA retaliation claim failed as a matter of law. Ruling on dueling summary judgment motions, a federal court in Texas held that the employer did not commit a per se violation of the FMLA by limiting her intermittent leave to three days per month, that it lawfully required vacation to run concurrently, and that there was no indication that its proffered reason for terminating her was pretextual. However, triable issues existed as to whether it engaged in unlawful interference by refusing her request to mark the absences as preapproved leave when she previously only had to inform her supervisor when she was using preapproved intermittent leave and was not required to take any other specific actions or seek special permission.

Prior unapproved absences. Under the employer’s policy, the employee was eligible for termination once she accrued 60 hours of unexcused absences. On August 14, 2017, she received a final warning that she had accumulated 58 hours of unexcused absences.

Intermittent FMLA leave. On August 17, she was approved for intermittent FMLA leave of three days per month through July 2018, based on her healthcare provider’s medical certification. However, she was first required to use 50 percent of her vacation time. On October 25, she requested FMLA intermittent leave and her supervisor purportedly instructed her to code the absence as unpaid FMLA leave since she had already used 50 percent of her vacation.

Vacation day marked as unapproved. She subsequently took a vacation day on October 31, which she claimed was previously approved. However, the employer marked the absence as unapproved on her attendance worksheet since it had counted the last eight hours of her approved vacation time toward her FMLA-protected October 25 absence, pursuant to its policy.

Denied leave. The employee then missed work from November 1 to 7, advising her supervisor each day that her absence was due to her FMLA-protected health condition. However, her employer denied her FMLA-protected leave for that full week. She also requested FMLA leave on December 5, but her supervisor instructed her to return to work. On December 7, she was terminated for excessive unplanned absences. The October 31 absence put her over the 60-hour maximum, but her attendance worksheet also listed the November absences.

No per se FMLA interference. The court rejected the employee’s contention that the limiting of her intermittent leave to three days per month, for a total of 36 days per year, was per se FMLA interference. Because the employer granted her the leave requested in her supporting medical documentation, it did not interfere with her FMLA rights as a matter of law.

Vacation can be required to run concurrently. The court also rejected her contention that the employer interfered with her FMLA rights when it applied her last eight hours of vacation to her FMLA-protected absence on October 25, rather than toward her pre-approved vacation on October 31, thus rendering the latter unapproved. The employer’s policy permissibly required up to 60 hours of her vacation time to run concurrently with her intermittent leave since federal regulations expressly allow employers to "substitute" paid vacation leave for FMLA leave.

Though she claimed that her supervisor misinformed her about the vacation policy and procedure for coding her absence, the written policy was unambiguous. And even if her supervisor had instructed her to code the October 25 absence as unpaid FMLA leave since she had already used 50 percent of her vacation (which he denied), it was admittedly her responsibility to track her available vacation time. She also conceded that had she correctly tracked her vacation and intermittent leave time, she would not have taken a vacation day on October 31.

Triable issues as to November unexcused absences. However, a jury would decide whether her employer’s denial of FMLA leave for absences from November 1-7 constituted interference since she was approved for three days per month of intermittent leave and she advised her supervisor each day that she would be out due to her FMLA-protected health condition. Though the employer argued that those absences were for non-FMLA reasons, it admitted that she "merely" had to inform her supervisor when she was using intermittent leave and did not need to seek special permission or take other actions to use her three days per month of leave.

Nevertheless, it required her to seek medical approval for short-term disability or coverage under its work accommodation policy. While her doctor refused to fill out the paperwork, a triable issue existed as to whether she would have been approved for FMLA leave had the employer adhered to its admitted practice of requiring her only to advise her supervisor that she sought to use preapproved leave. And while the employer also argued that she still would have been terminated based on the two additional unexcused absences in November and her October 31 absence, all of her November absences were cited in the attendance worksheet that served as a basis for her termination.

No retaliation. In granting the employer’s motion for summary judgment on her FMLA retaliation claim, the court held that while her protected activity (requesting three days of intermittent leave in November) and termination were not completely unrelated since these absences were listed on the attendance worksheet which was used as a basis for her termination, she failed to show that her firing was pretextual. She only cited the temporal proximity, which was insufficient at the pretext stage.

SOURCE: Baeza v. Verizon Wireless Texas, LLC, W.D. Tex., No. 3:18-cv-00301-DB, March 12, 2020.

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