Recent Fmla Appellate Decisions and Proposed Fmla Regulations
| Publication year | 2012 |
| Pages | 95 |
2012, August, Pg. 95. Recent FMLA Appellate Decisions and Proposed FMLA Regulations
August 2012
Vol. 41, No. 8 [Page95]
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
Coordinating Editor
John M. Husband, Denver, of Holland and Hart LLP-(303) 295-8228, jhusband@hollandhart.com
About the Author
Andrew W. Volin is a member of the Labor and Employment Department at Sherman and Howard L.L.C. in Denver. He represents private sector employers in all aspects of labor and employment law-avolin@shermanhoward.com.
This article describes recent federal appellate decisions interpreting the Family and Medical Leave Act, including decisions favoring employers, decisions favoring employees, and practical advice for lawyers involved with FMLA counseling. The article also describes recently proposed FMLA regulations.
The Family and Medical Leave Act of 1993 (FMLA)(fn1) provides eligible employees leave from work for a variety of reasons, including the birth or adoption of a baby, the employee's serious health condition, or the serious health condition of a family member. Recent statutory amendments expanded the FMLA to include leave for a variety of situations related to military service, including care for service members with a serious illness or injury, and situations arising from a call to active duty or deployment.
This article primarily highlights recent FMLA decisions at the federal appellate level. First, it addresses cases enforcing employer's rights under the statute or otherwise limiting the scope of the FMLA. Second, cases favorable to employees are discussed. Within each case discussion, practical advice is provided to guide those who advise employers and employees about FMLA rights and obligations. Finally, the article identifies highlights of recently proposed FMLA regulations.
Decisions Enforcing Employers' Rights or Limiting the FMLA
Federal appellate courts have issued several recent decisions that limit employees' rights under the FMLA. Some of these are discussed below.
State Sovereign Immunity
In Coleman v. Court of Appeals of Maryland, a March 2012 decision limiting the scope of the FMLA for state employees, the U.S. Supreme Court held that state sovereign immunity bars FMLA claims based on the employee's own serious health-care condition.(fn2) By its terms, the FMLA applies to state governments, as well as to private employers with at least fifty employees. In 2003, the Supreme Court ruled that Congress validly abrogated state government immunity with respect to the FMLA's provision for care of family members with a serious health condition.(fn3) The basis for that decision was that a historical record of sex discrimination in state leave policies provided a Fourteenth Amendment rationale for extending the family care provision to the states. In Coleman, in contrast, the Court ruled the self-care provision of the FMLA had no similar justification and, therefore, was an invalid exercise of congressional authority. The Coleman decision is consistent with a 2003 decision by the Tenth Circuit, Brockman v. Wyo. Dep't of Family Servs.(fn4)
Absence Control Policies
Emphasizing the right of employers to require employees to comply with absence control policies, the Tenth Circuit held in Twigg v. Howler Beechcraft Corp., that even if an underlying absence were protected by the FMLA, violation of a company's notice of absence policy is a legitimate reason for discharge.(fn5) In that case, the company had an absence notification policy that required employees to call in before their shift, every day of their absence, until they were notified their FMLA leave was approved. The company also had a policy that three consecutive days of failing to report was a violation for which termination was appropriate. Due to a variety of circumstances, an employee's leave initially was approved for only a week, and then was extended for several weeks. The employee, however, thought her leave had been approved for a longer period of time. When the employee failed to report or call in to work after the extension, the company terminated her employment. She asserted a variety of claims, including FMLA retaliation and interference claims.
Retaliation claims require a showing that the employer was motivated by a retaliatory motive, while FMLA interference claims do not require a showing of intent. The district court dismissed both claims on summary judgment, and the court of appeals affirmed. The FMLA retaliation claim failed because the employee did not show the company's decision was motivated by retaliation for using FMLA leave. The FMLA interference claim failed because an employee's violation of an absence notification policy is a legitimate basis for termination, even if the absences that the employee failed to report were protected by the FMLA.
Violation of "no call no show" policies or other absence control policies also defeated FMLA claims in several recent decisions by the Eighth Circuit. In Lovland v. Employers Cas. Co., the employee already was subject to a corrective action for excessive absenteeism, and the employer fired her for violating its policy after she failed to call in two days in a row after the death of her father.(fn6) She argued that the corrective action was based in part on absences that were FMLA protected; therefore, the termination was unlawful. However, the court ruled that there was evidence the FMLA-protected absences had been removed from the corrective action consideration, and that the violation of the policy was an independent reason justifying termination.
In Ballato v. Comcast Corp., the employee mistakenly believed he had been fired and stopped showing up at work.(fn7) The company then terminated him for violating its three-day "no call no show" policy. He claimed that he had called in the first day, requesting FMLA leave. However, he did not follow the instructions the company gave him, or respond to messages. The Eighth Circuit affirmed summary judgment, concluding that the company had not interfered with the employee's FMLA rights by enforcing its attendance policy against him.
The Eighth Circuit also upheld summary judgment against an employee in a case based on an attendance policy that imposed points for violations, when the employee accumulated too many points because he failed to comply with instructions. In Chappell v. The Bilco Co., the employee claimed multiple instances of interference with his FMLA rights, because the company assessed points for what he considered to be FMLA qualifying absences.(fn8) However, in the first absence, he failed to call in to his supervisor as required by the policy. The second absence did not qualify for FMLA protection because the employee failed to provide the required FMLA certification. The final absence was only partially protected by the FMLA, because he could have worked part of the day, and he was told to come in, but he chose not to do so.
Practical advice. No call no show termination rules are permissible, but may lead to disputes in the FMLA context. Employers should have a clear and firm absence control policy, as well as an FMLA policy. An absence control policy may require employees to provide reliable contact information and to call in daily unless informed otherwise in writing, even if the employee believes the absence qualifies under the FMLA. If employers have reason to believe lines of communication are not working, employers may choose to suspend an employee pending further investigation, rather than to proceed directly to termination.
Exacerbation of Medical Condition
Rejecting a proposed expansion of the FMLA, the Seventh Circuit ruled...
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