Pension & Benefits News Truck driver fired after missing work due to back pain gets trial on FMLA interference claim
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Friday, February 14, 2020

Truck driver fired after missing work due to back pain gets trial on FMLA interference claim

By Pension and Benefits Editorial Staff

A jury will decide whether a trucking company unlawfully interfered with its driver’s FMLA rights by firing him due to his FMLA-protected absences taken while he was suffering severe backpain, a federal court in Illinois ruled, denying the parties’ cross-motions for summary judgment. Triable issues existed as to whether the driver was incapacitated for three or more days and whether he suffered from a serious health condition based on his course of treatment due to his prescription of a narcotic pain killer. It was also disputed whether he provided sufficient notice of his need for FMLA leave, whether he had exhausted his accrued PTO prior to the purported denial of FMLA leave, and whether he was terminated for absenteeism or other misconduct.

Absences for back pain. The driver was hired by the trucking company in March 2014. Fifteen years earlier, he suffered a herniated disc, which caused occasional flare-ups of acute back pain. In February 2015, he reinjured his back at work and went to the emergency room, where he was prescribed medication and received a doctor’s note. He later returned without restrictions.

In May 2016, he advised his manager he was going to take a few days off because his back was hurting from shoveling ash. He subsequently missed work from September 4-6 to have a colonoscopy and upon his return on September 7, allegedly reinjured his back. When he called in on September 8 to report that he would not be at work due to his back pain, he purportedly failed to comply with the employer’s call-in procedures. He was also advised he needed to bring a doctor’s note stating he could work without any restrictions in order to return, but he failed to do so.

Prescription for narcotic. That same day, he went to the ER and was prescribed several medications to take until September 11, including a prescription for the narcotic pain reliever "Norco." He followed up with his physician on September 12, who diagnosed him with lumbar back pain and prescribed Norco as needed. The doctor also provided a note stating that he could return to work without restrictions on September 15, but did not describe his condition or treatment. The driver returned to work and subsequently called in on the morning of October 3 to report he would be absent due to the flu, but refused a directive to provide a doctor’s note since he was "not spending money to go to the doctors."

Fired for absenteeism. When he returned to work on October 5, his manager terminated him for absenteeism. The employer also pointed to his failure to report time off in a timely manner and his refusal to provide a doctor’s note for his flu-related absence. Meanwhile, nobody ever discussed the FMLA with him or provided him with any FMLA-related forms.

Serious health condition. The court first found that a triable issue existed as to whether the driver had a qualifying "serious health condition" under the FMLA. Notably, he testified that sometimes after finishing his shift he could barely get out of his truck or into his car and that from September 8-14, 2016, his back pain caused him difficulty getting out of bed, bending over, and getting dressed. During that time, he was also prescribed a narcotic with the instructions "DO NOT OPERATE MACHINERY OR DRIVE."

Continuing treatment included narcotics. As a truck driver, it would not have been advisable for him to report to work while he was taking that prescription over the course of seven days. Given that circumstance and based on his statements regarding his daily activities, a fact issue remained as to whether he was incapacitated for three or more days. It was also questionable whether, based on his course of prescription medication, he suffered from a serious health condition because of that continuing treatment.

Sufficient notice. A triable issue also existed as to whether the driver gave sufficient notice that he suffered an FMLA-qualifying condition. While he could have provided more detail, his manager was aware he had injured his back on at least two prior occasions. When he provided his manager with his September 12 doctor’s note stating he could return to work after a 7-day absence, the employer could have requested additional information but failed to do so. And while it appeared that he may not have complied with the call-in policy on September 8, the record did not specify the exact timing of events.

Denial of FMLA benefits. The employer also argued that the driver wasn’t denied FMLA leave because its handbook stated that employees on FMLA leave "must use all of their unused vacation and any other accrued paid time off before beginning unpaid leave." However, while an employer may require an employee to substitute any accrued paid vacation leave, personal leave, or sick leave for leave provided under the FMLA, a factual dispute existed regarding how much PTO he had accrued prior to September 8 and whether he had exhausted it.

Disputed reason for termination. Moreover, while the reason given for the driver’s termination was "repeated absences" in violation of the attendance policy, the employer subsequently also claimed he was terminated for other reasons, such as violating the call-in policy and refusing to provide a doctor’s note for the October absences. Therefore, a triable issue existed as to whether the employer denied him benefits and interfered with his rights under the FMLA.

SOURCE: Cooper v. Beelman Truck Co. (C.D. Ill.), No. 3:17-cv-03102-RM-TSH, January 3, 2020.

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