HR Management & Compliance

It’s the Employer’s Job to Know When FMLA Applies

In worst-case scenarios, stumbling blocks become legal hurdles too great for your human resources department to overcome. What starts as an innocent mistake, lack of knowledge or sin of policy omission becomes a genuine issue of material fact and it lands your company in court.

In the case of Lichtenstein v. University of Pittsburgh Medical Center, UPMC must have assumed it had a clear path for job termination — with nary a stumbling block in sight — when it fired a psychiatric technician for numerous incidents of tardiness, absenteeism and scheduling difficulties.

UPMC had kept consistent, accurate and defensible attendance records of Lichtenstein on both a computerized time system and staff log. Faced with an FMLA interference and retaliation claim, the medical center presented as evidence a plausible, documented explanation for firing the former research associate four months into her six-month probationary period.

Although UPMC said it was willing to accommodate Lichtenstein’s school schedule, the dismissed employee, by staff accounts, was a “nightmare to schedule” and “constantly requesting days off to study or complete schoolwork.”

UPMC must have figured that it had ably configured its compliance ducks in a row. What it didn’t figure is this: It has an obligation to know — and notify the employee — when the Family and Medical Leave Act applies.

The 3rd U.S. Circuit Court of Appeals, with one judge dissenting, reversed the U.S. District Court, Western District of Pennsylvania summary judgment to UPMC on both claims, finding that there were material questions of disputed fact.

FMLA Stumbling Blocks

Per court records, here is what UPMC missed (much of which can be perceived as red compliance flags or “FMLA stumbling blocks”):

On Jan. 3, 2008 (seven days before having been fired on Jan. 10), Jamie Lichtenstein called UPMC’s nursing supervisor to say she could not make her shift. During the phone call, Lichtenstein told the supervisor that she was currently in the emergency room because her mother had been brought into the hospital via ambulance and that she would be unable to work that day.

The supervisor who fielded the call was a vacation replacement for Lichtenstein’s usual supervisor. The substitute supervisor e-mailed the usual supervisor to inform her that Lichtenstein had “called off.” The e-mail did not indicate a reason for Lichtenstein’s “call-off.”

Lichtenstein returned to work the next two days (Jan. 4 and 5) and made no further mention of her mother’s condition. On Jan. 7, Lichtenstein’s supervisor returned from vacation and asked to see the staff log, which noted “sick mom,” in the entry as a reason for Lichtentstein’s absence.

In her deposition, the supervisor said she planned to terminate Lichtenstein on Jan. 8, the day after she returned from vacation, but the plan was foiled early that morning when Lichtenstein contacted UPMC to request leave to care for her mother.

Lichtenstein sent her supervisor the following e-mail:

“I am not sure if you are aware, but my mother has been in the hospital since Thursday [January 3rd]. I am not sure how much longer they will keep her hospitalized. And once she is released, she might require some assistance. Under these circumstances and at this point in time, I would like to, as well as need to, take a leave of absence. Who do I speak with to aid me in this process?”

The supervisor claims she did not read this particular e-mail. In fact, the supervisor insists that she terminated Lichtenstein before she knew anything about her mom being ill or needing to ask for leave. This claim, however, is at odds with other evidence in the record, including the fact that the supervisor responded to Lichtenstein’s e-mail.

This communication, taken together with the “sick mom” notation in the staff log, provided a sufficient basis from which the circuit judges to infer that “by the time [the supervisor] terminated Lichtenstein, she was on notice that Lichtenstein’s January 3rd absence may be protected under the FMLA.”

The court observed that there were disputed issues of material fact regarding whether the employer considered the January absences when it decided to terminate her. One of the court’s key observations was that the employer’s EEOC position included the early January absence among the reasons for the termination.

Clearing the Obstacle Course

Even when it may seem that “all systems are go” and you are ready to turn the corner on an adverse action against an employee, be careful of the stumbling blocks in your blind spot. You need to consider all the facts surrounding an employee’s reputation and track record before making a decision to part ways.

Timing, particularly as it relates to FMLA leave obligations and job termination, is a critical factor in the eyes of the court. The Lichtenstein case demonstrates the importance of:

  1. identifying whether an employee’s request for time off is protected by FMLA;
  2. coaching and training your supervisors and their protégés or temporary replacements on the gathering and internal dissemination of specific, relevant details employee(s) divulge as reasons for unscheduled time off or anticipated absences; and
  3. establishing a defensible justification for termination and then articulating your lines of reasoning in the EEOC position statement.

For information applicable to addressing a Lichtenstein-like situation, see ¶233 Eligibility Notice and ¶351 Reporting and Call-in Policies in Thompson’s Family and Medical Leave Handbook.

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