March 30, 2016
A. Failing to ask for more information and/or investigating situation before disciplining or discharging employee for attendance violations
i. Initial leave request(s):
1. Requests for medical leave need only be reasonably calculated to inform the employer the employee is requesting leave and of the reason for the request. Once a request is received, employers may approve, disapprove, or request more information under the medical certification process. See Sieger v. Wisconsin Personnel Commission, 181 Wis. 2d 845, 512 N.W. 2d 230 (Ct. App. 1994).
2. Keep in mind that no formal application or detailed information need be provided to invoke protection under the FMLA. Jicha v. State, 164 Wis. 2d 94, 473 N.W.2d 578 (Ct. App. 1991).
3. Best practice: if unsure as to whether employee has invoked FMLA protection, utilize right to ask for more information through medical certifications.
ii. Suspected abuse of FMLA leave
1. Employers may terminate employee if employer has “honest belief” that employee is abusing FMLA.
a. No violation of the FMLA if employer refuses to reinstate employee because of “honest suspicion” that she has abused her leave. See Vail v. Raybestos Prods. Co., 533 F.3d 904 (7th Cir. 2009).
b. Evidence gathered from employee’s social media can form the basis for an “honest belief” defense against claims of FMLA interference/retaliation. See Scruggs v. Carrier Corp. 688 F.3d 821 (7th Cir. 2012).
B. Not adjusting performance expectations while employee is on FMLA leave
i. FMLA can require that performance standards be adjusted to avoid penalizing an employee for being absent during their leave.
ii. In Pagel v. TIN, Inc. 695 F.3d 622 (7th Cir. 2012), the Court found that the employer violated the FMLA when it terminated an employee for not meeting its sales expectations, rather than making reasonable adjustments to the employee’s performance expectations to account for his FMLA leave.
iii. Best practice: consider whether FMLA absences impacted employee performance, especially when performance expectations are tied to
achievement of certain goals.
C. Discharging employee upon failure to return to work upon exhaustion of leave entitlement under FMLA without considering ADA and/or WC implications
i. In many cases, the FMLA analysis alone may not resolve whether an employer is obligated to restore an employee to his/her position.
ii. Employers should consider whether the employee is disabled for purposes of the ADA, and if so, whether the employee may be entitled to a reasonable accommodation, including the granting of additional leave time.
However, the FMLA does not require an employer restore an employee to his/her position if the employee is only able to perform light duty work. See James v. Hyatt Regency Chicago, No. 12-1511 (7th Cir. Feb. 12, 2013).
iii. The Seventh Circuit has held that reassignment into a vacant position, even if there are other qualified candidates, is a reasonable
accommodation. See EEOC v. United Airlines, Inc. No. 11-1774 (7th Cir. Sept. 7, 2012).
iv. Best practice: in addition to communicating when leave is to end and consequences of not returning to work and/or communicating with
employee about return to work, engage in interactive process to assess whether extension of leave, reassignment, or other accommodation will allow employee to return to work.
D. Disciplining or discharging employee for exceeding doctor’s recommended, intermittent allowable leave time without asking for medical recertification
i. In Hansen v. Fincantieri Marine Grp. LLC (E.D. Wisconsin, Case No. 12-00032), a federal court issued a decision denying summary judgment to an employer on FMLA interference and retaliation claims. The employer terminated an employee when he continued to miss work after exceeding his doctor’s estimate of episodic flare-ups of “four episodes every six months.” The Court reasoned that “the employer cannot simply assume that any leave in excess of the estimate is unauthorized.” Rather, “[t]he fact that the regulations allow the employer to request a recertification under such circumstances argues against treating leave in excess of the estimate as outside the certification.”
ii. Best practice: consistently ask for medical recertification from employees on intermittent leave on a regular basis (i.e. every 60 days, 6 months etc.) and as soon as employee exceeds doctor’s recommended leave amount.
e. Other common mistakes:
i. Maintaining stricter attendance and/or call-in policies than are allowable under FMLA
ii. Failing to consistently document performance issues until after employee goes on or returns from FMLA
iii. Reprimanding employee for absenteeism when any of the absences cited is covered under the FMLA.
1. See Meyer v. DHSS (Wis. Personnel Comm., 06/11/92). (finding that Respondent was prohibited from and violated the WFMLA by disciplining employee who had established that he had a serious health condition on four of the days he was disciplined for).