Employers Beware: What You Say Can and Will Be Used Against You!

By Darryl McCallum - Shawe Rosenthal LLP

November 16, 2018

Any HR professional who has dealt with the Family and Medical Leave Act knows that determining when and how the statute applies can be very tricky.  One thing that is clear, however, is that employees who have worked for less than one year and have not worked a total of 1250 hours are not eligible for FMLA leave and thus are not protected by the statute.  Or so we thought!  A case from last week, Reif v. Assisted Living by Hillcrest, LLC, dispels the notion that employees who have worked for less than a year are never subject to the protections of the FMLA.

The employee in that case worked as an administrative assistant at an assisted living facility. After she began experiencing hip and knee pain, she learned from her doctor that she would need surgery to correct the problem.  At the time, she had been working for her employer for less than a year.  She informed the human resources coordinator at her facility that she intended to take time off to have the surgery once she became eligible for FMLA.  The human resources coordinator allegedly told the employee that she could take FMLA leave once she reached her one-year anniversary, which was approximately two weeks away.  Accordingly, the employee scheduled her surgery for a date shortly after she became FMLA-eligible.

The human resources coordinator, after consulting with the head of the facility where the employee worked, later told the employee that she needed to send her home because she was a liability to the company and they did not want her to injure herself further and file a worker’s compensation claim against the company.  In addition, according to the employee, the human resources coordinator told her that she needed to schedule her surgery as soon as possible and that she would work with her to get her FMLA approved (even though she had not yet worked a full year).  She also indicated to the employee that her job would be available once she was able to return to work.

Based on these alleged statements, the employee submitted an FMLA application with a leave start date that was before her one-year anniversary and moved her surgery up from the date it had been originally scheduled.  A few days after her surgery, the employee received a letter acknowledging her FMLA request but stating that she was not eligible for FMLA.  Her doctor provided a note saying she could return to work with certain work restrictions, including that she not put weight on her right leg and that she use an assistive device for mobility in order to perform her job duties.  Nonetheless, the employer informed the employee that her position was no longer available.

The employee filed suit, claiming that the employer interfered with her attempt to take FMLA leave and discriminated against her on account of such attempt.  The employer filed a motion to dismiss, claiming that the employee was not an “eligible employee” under the FMLA at the time she requested leave and had her surgery.  In denying the employer’s motion, the court noted that the employer “would be on solid ground as far as the FMLA is concerned if [the employee] had simply taken off for her surgery on her own prior to becoming eligible for FMLA leave.”  However, the court noted, in this case, the employee was allegedly encouraged by the employer’s human resources coordinator to move her surgery up and was assured that her job would be waiting for her once she recovered.  As such, the court held, “[i]t would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would be eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”

This case is a textbook illustration of the importance of clear communication with employees that is backed up by written documentation.  While this ruling involved a motion to dismiss, where the employee’s allegations in the complaint are assumed to be true, if the employer took steps to document the conversations between the human resources coordinator and the employee, such as by sending e-mails to the employee, then the employer will have a much easier time defending the case.

Statements such as those alleged by the employee in the complaint make me cringe because it could expose the employer not only to FMLA liability but also to liability under the Americans with Disabilities Act.  It seems to me the employee could have also alleged that she was disabled, or at least that the employer regarded her as disabled, the employer required her to take leave rather than continue working, and that the employer fired her rather than accommodate her work restrictions.  So be careful what you say and make sure to document your conversations in case an employee tries to use your statements as the basis for a lawsuit.