FMLA Doesn’t Protect Sleeping On The Job

FMLA Sleep
The FMLA Doesn’t Protect Employees Who Sleep On The Job

The Eleventh Circuit Court of Appeals recently rejected an attempt by an employee to use the FMLA as a shield to prevent her termination for sleeping on the job.  Feise v. North Broward Hosp. Dist., No. 15-15261, 2017 WL 1101402 (11th Cir. Mar. 24, 2017).   In Feise, the employee was a nurse who took FMLA leave in August 2013 and returned to work in September.  Ten days after returning to work, Feise was terminated for sleeping on the job.  Feise claimed that she was terminated in retaliation for using FMLA leave.

For purposes of appeal, the Eleventh Circuit assumed that Feise could prove a basic, prima facie case of FMLA retaliation.  Instead, the Court focused upon the employer’s reason for termination and Feise’s response.  The reason for termination was clear — sleeping on the job.  Therefore, the burden shifted to Feise to show that sleeping on the job was not the real reason for her termination.

In an attempt to meet her burden, Feise compared herself to other employees who committed misconduct, but were not fired.  First, Feise claimed that a medical technician committed misconduct which was worse than sleeping on the job — abandoning supervision of an at-risk child.  Yet, the Eleventh Circuit rejected that attempt:  “On-the-ground determinations of the severity of different types of workplace misconduct and how best to deal with them are exactly the sort of judgments about which we defer to employers.”  Second, Feise compared herself to a medical technician who was not fired for sleeping on the job.  Again, the Eleventh Circuit rejected that attempt, finding that the technician produced a doctor’s excuse for sleeping on the job, and that there was a qualitative difference between a nurse (Feise) and a medical technician.

The Court found that Feise failed to meet her burden and affirmed dismissal of her FMLA retaliation claim.  Feise provides two lessons for employers.  First, an employer can terminate an employee, even in close proximity to protected conduct like FMLA leave.  Second, to protect themselves from retaliation law suits, employers need to discipline similar employees in a similar manner.  If the employer in Feise had retained other nurses who slept on the job, but terminated Feise, the outcome of the case could have been much different.

Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

Thin Ice retaliation
Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs.  Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination.  As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits.  Those cases focus on the concept of causation.  As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint.  In most cases, close timing between the complaint and termination is sufficient to establish causation.   But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation.  Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.”  Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim.  The Eleventh Circuit provides the following rationale for that rule:   “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.”   Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision.  Additionally, employers should also proceed cautiously any time an employee complains about discrimination.  Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.


Judge Acker Continues To Limit Wrongful Termination Claims

Wrongful Termination
Wrongful Termination Claims

In two previous posts, I wrote that United States District Court Judge William Acker provided employers with a weapon against employees making multiple claims of wrongful termination: Judge Acker’s Weapon  , Judge Acker Softens Position.  In ADA, ADEA, and Title VII retaliation cases, employees must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.  Judge Acker’s earlier rulings prohibited employees from filing complaints that claimed they were terminated because they were disabled, or old, or made claims of discrimination.

On May 26, 2016, the Eleventh Circuit Court of Appeals reversed Judge Acker’s reasoning in Savage v. Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th Cir. May 26, 2016). The Court found that Rule 8(d) of the Federal Rules of Civil Procedure expressly permits plaintiffs to plead alternative and inconsistent claims.  So, employees are allowed to file a complaint claiming that they were terminated because they were disabled, or old, or made claims of discrimination.

Undeterred, Judge Acker issued a new opinion last Friday:  Jones v. Allstate Ins. Co., No. 2:14-cv-1640-WMA, 2016 WL 4259753 (N.D. Ala. Aug. 12, 2016).  Judge Acker found that Savage merely prevented him from applying his “but for” analysis at the beginning of a case at the motion to dismiss stage.  Nevertheless, he found that Savage did not control at the summary judgment stage — when depositions and discovery are complete.  As a result, he dismissed wrongful termination claims under the ADA, FMLA retaliation and Title VII retaliation.  Effectively, he found that each of those claims cancelled the others out.

Almost certainly, the employee in Jones will appeal, and it will be interesting to see how the Eleventh Circuit addresses Judge Acker’s analysis.  For now, however, Judge Acker’s analysis effectively forces employees to limit the number of discrimination claims that they pursue.


Insufficiency in FMLA Paperwork is Not Grounds for Denial of Leave


Leave of Absence

A recent case from the Northern District of Alabama demonstrates the dangers of denying FMLA leave based insufficient FMLA paperwork.  Hayes v. Voestalpine Nortrak, Inc., No. 2:14-cv-2322-AKK (May 5, 2016).

In Hayes, the employee submitted an FMLA certification from his doctor which said that the employee:  (1) was seen “too many times to list — monthly since 2009”; (2) had impairments expected to continue throughout his life; and, (3) would need follow-up treatment appointments.  Nevertheless, the employer’s Human Resources Director denied the request for FMLA leave because the certification failed to indicate whether the employee would be incapacitated for any period of time or if the employee needed a reduced work schedule.

United States District Court Judge Abul Kallon denied summary judgment for the employer and sent the case to trial.  Judge Kallon particularly faulted the employer for failure to notify the employee in writing of deficiencies in the FMLA paperwork.  The FMLA’s implementing regulations require:

The employer shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete or sufficient.  A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.

29 C.F.R. § 825.305(c).

Because the employer failed to notify the employee in writing of deficiencies in the paperwork, Judge Kallon found a jury issue “about whether the failure to engage in the certification dialogue constituted interference with Hayes’ FMLA leave.”  Hayes, 2016 WL 258791 at *4.

Hayes could be a dangerous case in the future, because of its reference to a “certification dialogue.”  There is no requirement for a “dialogue” under the FMLA, but I expect that some employee-friendly lawyers will argue that employers are required to notify employees of the exact weaknesses in a doctor’s certification, and engage in a “dialogue” to get the certification in a form that will permit FMLA leave.  I don’t believe that there is any such requirement.  Instead, if a physician’s certification is clear on its face, and does not satisfy the requirements for establishing a “serious health condition,” then employers should be able to deny FMLA leave without any further “dialogue.”

Hayes should stand for a much narrower proposition.  An exchange of information with the employee may be required if the doctor’s certification:  (1) has entries that have not been completed; or, (2) is vague, ambiguous or non-responsive.  29 C.F.R. § 825.305(c).  In any event, Hayes provides employers with a cautionary lesson about denying FMLA leave based upon deficiencies in an FMLA certification.


Judge Acker Slightly Softens His Stance on “But For” Causation


Leave of Absence

About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker.  Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.

In a recent decision, Judge Acker slightly softened his stance on “but for” causation. See Kirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.



I frequently receive telephone calls from clients asking if they are required to create a light duty position for an employee who is injured on the job.  The well-reasoned response to that question is:  “It depends on your definition of ‘create.'”

While the question seems simple, this is an extremely complex area of the law that involves the intersection of the Alabama Workers’ Compensation Act, the Americans with Disabilities Act and the Family and Medical Leave Act.  Alabama law is clear:  the Alabama Workers’ Compensation Act does not require an employer to create a light-duty position for an employee injured on-the-job.  Bleier v. Wellington Sears Co., 757 So.2d 1163, 1172 (Ala. 2000).

But, Alabama law is not the final authority for injured employees, because the Americans with Disabilities Act potentially applies.  If an employee is a “qualified individual with a disability” (a topic which could occupy several pages of discussion) an employer may be required to supply the employee with a reasonable accommodation.  Here’s where the confusion can occur.  An employer is not required to create a light duty position.  Nevertheless, if a light duty position is available, the employer may be required to transfer the employee to that position as a reasonable accommodation.  Moreover, if the employer has previously created positions for injured employees, there may be a requirement to create a position again.

In addition to the ADA, the Family and Medical Leave Act adds to the complexity of this question.  While the FMLA does not impose any accommodation requirements on employers, it does provide protection for employees suffering from a “serious health condition.”  Employees on FMLA leave are entitled to reinstatement after exhaustion of their leave.  The Eleventh Circuit Court of Appeals (which reviews FMLA cases in Alabama) has imposed a heavy burden on employers who fail to return employees to work.  Even if you don’t have to create a light duty position for the employee, you may have an obligation to allow the employee to try to return to work, or give them additional time to return.

Every case is different.  When making employment decisions about injured employees, talk to your attorney before taking final action.