FMLA: Employees Without 1,250 Hours Can Still Be Protected

1,250 hours FMLA pre-eligibility Alabama Employment Law
Some employees are entitled to protection under the FMLA before working 1,250 hours.

Most employers subject to the Family and Medical Leave Act (“FMLA”) know that an employee must work at least 1,250 hours in the previous 12 months to be eligible for 12 weeks of unpaid leave.   In addition to leave, the FMLA provides employees with other protections, like the right to be reinstated at the completion of leave, the right not to have their FMLA benefits interfered with by their employer, and the right to be free from retaliation for using the FMLA.

Many employers think that an employee possesses no rights under the FMLA unless they satisfy the 1,250 hour requirement.  That is a mistaken and dangerous belief.  Even before working 1,250 hours, an employee’s right to be free from FMLA interference can be implicated.  For example, some employees become pregnant before satisfying the 1,250 hour requirement, but they will give birth and need FMLA leave after completing 1,250 hours.  An employer who terminates an employee in order to avoid future FMLA obligations violates the FMLA even if the employee has not worked 1,250 hours.

The first Eleventh Circuit case to discuss this issue was Pereda v. Brookdale Senior Living Communities, 666 F.3d 1269 (11th Cir. 2012).  In June of 2009, Kathryn Pereda notified her employer that she was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009.  Pereda was terminated from employment in September of 2009.  It was “undisputed that Pereda, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child.”  Pereda, 666 F.3d at 1272.  Nevertheless, the Court found that Pereda was entitled to FMLA protection:  “Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.  Such a situation is contrary to the basic concept of the FMLA.”  Id. at 1273.  In short, the Court held that Pereda could sue for FMLA interference and retaliation — even though she had not worked 1,250 hours before she requested leave.

Employers contemplating termination or discipline of an employee who is pregnant or suffering from a serious health condition should proceed very cautiously.  Employers must consider not only whether the employee is currently eligible for FMLA leave, but also whether the employee will be eligible in the future.  Without taking all facts into consideration, employers risk an inadvertent violation of the FMLA.

FMLA: Three Strategies for Curbing FMLA Abuse

FMLA abuse intermittent leave Alabama Employment Law
FMLA abuse can be difficult for employers. But, there are ways to limit that abuse.

In my experience, the majority of employees requesting leave under the Family and Medical Leave Act (“FMLA”) use their leave appropriately.  Nevertheless, there are still a significant number of employees who will use the FMLA as a source of vacation days, instead of a relief for family or medical problems.  Typically, these employees use “intermittent leave” under the FMLA.  The FMLA does not require that all leave for one condition to be taken at one time.  Instead, the act recognizes that some conditions “flare up” intermittently or or require multiple treatments over time.  Therefore, employees are entitled to take leave on those intermittent occasions.

Frequently, employees are granted FMLA leave for such intermittent conditions.  But, what happens if an employee’s “flare ups” always seem to occur on a Monday or Friday?  What can an employer do to ensure that employees aren’t getting a consequence-free day-off when they aren’t really sick?  This is an exceedingly difficult area of the law, and I strongly urge all employers to talk with their lawyer before taking direct disciplinary action as a result of suspected FMLA abuse.  Also, if you suspect FMLA abuse, there are strategies to limit the abuse.

Ask for a Second Opinion.

Just because an employee’s hand-picked physician says there’s a need for intermittent leave, doesn’t automatically mean that the employee is entitled to leave.  Instead, if an employer has  a “reason to doubt” the validity of a medical certification, the employer may require the employee to obtain a second opinion.  The employer gets to select the second doctor, but must also pay for the second opinion.  The selected doctor cannot be one that the employer employs, contracts with or regularly uses.  In short, you can’t sent the employee to the “company doctor” for a second opinion.

If the second opinion disagrees with the the employee’s original opinion, then the employer and employee must work in good faith to select a third doctor, whose opinion will be final.

Use Certification Forms to Your Advantage.

FMLA certification forms are your friend.  Yes, they are unwieldy and confusing.  But, at the end of the day, those forms should tell you exactly what conditions qualify for the employee’s FMLA leave.  Here’s a link to the Department of Labor’s standard forms:  FMLA Forms.  If an employee takes FMLA, make sure their leave matches up with the form.  For example, if the employee’s certification says they will need intermittent leave for migraines, an absence for knee pain probably won’t qualify for FMLA leave.  Hold your employees accountable to the ground stated in their certification.

Ask for a Re-Certification. 

Generally, employers can request re-certification every 30 days, but the request for re-certification can  only be made in connection with an absence by the employee.  But, there is an exception to that general rule that frequently applies in intermittent leave cases.

If the original certification indicates that the minimum duration of the employee’s condition is more than 30 days, you must wait until the minimum duration expires before requesting re-certification.  But, there is also an exception-to-the-exception.  At a minimum, you are entitled to request a re-certification every 6 months in connection with an absence.

Finally, the FMLA permits employers to request re-certification at any time under certain conditions.  First, if the employee asks for an extension of the leave period (for example from three months to six months), a re-certification can be required.  Second, if the circumstances described by the original certification have changed significantly, a re-certification can be required.  There is much debate over whether a change is “significant,” so employers should proceed carefully with this exception.  Finally, if an employer receives information that casts doubt upon the employee’s stated reason for absence or the continuing validity of the certification, the a re-certification can be required.  The most common scenario of a “reason to doubt” occurs when the doctor’s certification says the employee will be in bed all-day during a “flare up,” but Facebook shows him playing golf.


These are just a few of the strategies that employers can use to combat FMLA abuse.    For further ideas, an experienced employment attorney can provide you with valuable guidance.

ADA: Extended Leave Is Not a Reasonable Accommodation



ADA leave of absence reasonable accommodation Alabama employment law
In the Eleventh and Seventh Circuits, an extended leave of absence is not a reasonable accommodation under the ADA.

Last week, the Eleventh Circuit found that an open-ended extension of leave without pay is not a reasonable accommodation under the Americans with Disabilities Act.  See Billups v. Emerald Coast Utilities Auth., No. 17-10391, 2017 WL 4857430 (11th Cir. Oct. 26, 2017).  Roderick Billups suffered an on-the-job injury on December 18, 2013 and he began FMLA leave on December 19, 2013.  The FMLA 12-week period expired on March 12, 2014, while Billups was still out on leave.  He underwent surgery on April 16, 2014 and on May 27, 2014 his physician restricted him to sedentary work.

In early June 2014, Billups’ employer, Emerald Coast, sent him a notice that he would likely be terminated because of his inability to perform the essential functions of his job with or without reasonable accommodation.  At a “hearing” on June 19, 2014, Billups provided some evidence that he might be cleared for duty by July 15, 2014.  Nevertheless, on June 23, 2014, Billups was terminated because of a continuing inability to perform the essential requirements of his job.  Billups continued medical treatment and was cleared to return to work without restrictions on October 23, 2014.

In January, I discussed another case from the Eleventh Circuit (Here) finding that a leave of absence is a reasonable accommodation only if it allows employees to “perform the essential functions of their jobs presently or in the immediate future.”  Because Billups received more than six months of leave before the termination decision, and could not return within the immediate future, the Court found that an extension was not a reasonable accommodation.

The Billups decision comes on the heels of a similar decision by the Seventh Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., which is discussed here:  7th Circuit Rejects Leave as Accommodation.    The Severson decision is slightly more noteworthy, because it directly addresses a policy from the EEOC requiring it as a reasonable accommodation:  EEOC on ADA and Leave.  The Court reasoned “[i]f, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute-in effect, an open-ended extension of the FMLA.”

FMLA: Even a Mistaken Reason Is a Legal Reason for Termination

FMLA Mistake
FMLA: Even a mistaken reason for termination can be a permissible reason.

A recent case arising under the Family and Medical Leave Act (“FMLA”) reinforces the maxim that an employee can be fired for a good reason, a bad reason, or no reason at all — so long as the reason does not violate federal protections.  See Neal v. T-Mobile, USA, Inc., No 16-16304, 2017 WL 270354 (11th Cir. Jun. 22, 2017).  In Neal, Latasha Neal took FMLA leave and was scheduled to return to work with T-Mobile on December 31, 2012.  Even though she exhausted her FMLA leave, T-Mobile extended her leave period to January 10, 2013.   Then, Ms. Neal negotiated a further extension with her district manager, Carl Graden, so that she was scheduled to return to work on January 22, 2013.  When she failed to return to work on that date, T-Mobile notified Ms. Neal that she had to submit a release-to-return-to-work from her physician by January 25, 2013.  If she failed to submit the release within that time, she would be deemed to voluntarily terminate her employment.

On January 25, 2013, Carl Graden called T-Mobile’s leave of absence team, which told him that Ms. Neal failed to submit the release form.  So, Graden terminated Ms. Neal’s employment.  In reality, Ms. Neal submitted the form, but it was mis-filed.  So, Graden’s reason for termination was mistaken.  Ms. Neal sued for FMLA retaliation.

The Eleventh Circuit Court of Appeal found that Ms. Neal’s termination was not retaliatory.  In particular, the Court relied upon Graden’s testimony that he did not know that Ms. Neal had submitted the return-to-work form, even though other T-Mobile employees did know.  This is simply re-enforces a previous blog post where I mentioned that ignorance of a decision-maker can sometimes be a good thing in discrimination actions:  Ignorance Can Be A Good Excuse

In a “fair” world, Mr. Graden would change his mind upon learning of the mis-filed form, and re-hire Ms. Neal.  But, the FMLA and other federal laws are not necessarily concerned with “fairness.”  Instead, so long as an employer makes employment decisions that are not based upon protected characteristics (like FMLA leave), then even unfair terminations are legal.


FMLA: Waiver of Reinstatement Rights By Requesting More Leave

FMLA reinstatement waiver
Employees may be waiving their right to reinstatement by requesting more leave after the expiration of 12 weeks of FMLA leave.

Employees may be waiving their FMLA rights by requesting additional leave at the end of their statutorily-mandated 12-week period.  See Jones v. Gulf Coast Health Care of De., 854 F.3d 1261 (11th Cir. 2017).  Rodney Jones was an activities director at a nursing home who underwent rotator cuff surgery.  His employer had a policy requiring a fitness-for-duty certification before returning from FMLA leave.  When Mr. Jones was not medically cleared at the end of his FMLA 12-week period, he requested, and received, an additional 30 days of leave.  While on that extended leave, he visited Busch Gardens theme park twice, and vacationed in St. Martin.  Upon returning to work Mr. Jones was terminated because his employer believed he was well-enough to work at an earlier point.

The Jones case actually discusses several issues of significance for employers and employees under the FMLA.

Waiver of Rights by Requesting Additional Leave

Mr. Jones’s employer gave him an additional 30-days of leave, but “[s]ignificantly, this additional leave was not an extension of Jones’s FMLA leave.”  The Eleventh Circuit stopped just short of announcing a concrete rule on waiver.  Nevertheless, the Court is clearly learning towards such a rule:  “Relevant caselaw suggests that an employer does not interfere with an employee’s right to reinstatement if that employee is terminated after taking leave in a excess of the 12 weeks permitted by the FMLA.”  The Court found that “Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave ….”  Nevertheless, the Court found other reasons to uphold the termination.

Fitness for Duty

“[A]n employee returning from FMLA leave who cannot perform the essential functions of his job due to a physical condition need not be reinstated or restored to another position.”  Moreover, an employer may lawfully condition reinstatement upon receipt of a fitness-for-duty certification from a physician.  But, the employer must have a uniformly-applied fitness-for-duty policy.

Mr. Jones argued that his employer did not have a uniformly applied policy, because it allowed other employees to return on light duty, but not him.  The Eleventh Circuit rejected that argument and placed significant limits on the ability of employees to compare themselves to others.  The Court found that comparator employees must be “similarly situated.”  And, the employees that Jones compared himself to were not similarly situated because they:  (1) held different jobs with different duties; and, (2) were recovering from different maladies.

Retaliation – Time Limits for Causation

While the Eleventh Circuit’s decision with regard to reinstatement significantly limits employees’ rights, another part of the Jones opinion helps employees asserting retaliation.  Jones claimed that his termination was not related to his vacations, but was retaliation for seeking FMLA leave.  A retaliation claim requires proof that termination was caused by a request for FMLA leave.  The most frequent way to prove causation is through temporal proximity — a short period of time between assertion of FMLA rights and retaliation.  In the Eleventh Circuit, a period of two or three months between assertion of rights and termination usually satisfies the temporal proximity requirement.

Before Jones, Eleventh Circuit courts were split on whether the time limits for causation begin at the beginning or at the end of the FMLA leave.  Remember, FMLA leave is essentially three months of leave.  In Mr. Jones’s case, he was fired four months after requesting FMLA leave, but only one month after the end of his FMLA leave.

The trial court found that Mr. Jones’s time began running from the beginning of his request for FMLA leave, and that a delay of four months for termination was too long to establish causation.  The Eleventh Circuit reversed that decision and established a new rule for retaliation claims:  temporal proximity “should be measured from the last day of an employee’s FMLA leave until the adverse action at issue occurs.”  Because only one month passed from the last day of Jones’s FMLA leave to his termination, the Court reversed dismissal of his retaliation claim.

In summary, Jones is a good news/bad news case for employers.  On the one hand, the Eleventh Circuit made it more difficult for employees to assert claims for interference with FMLA rights.  On the other hand, the Court made it easier to prevail on retaliation claims.

E-mail: Stating the Reasons for Termination Can Lead to Liability

e-mail employer litigation
E-mails stating the reasons for termination can come back to haunt employers in litigation.

Anything you say can, and will, be used against you in a court of law.  That familiar phrase comes from criminal law as part of a criminal suspect’s Miranda rights.  But, it applies equally well in employment discrimination cases.  Anything that an employer says about an employee can, and will, be used by the employee to prove discrimination.  Moreover, by putting it in an e-mail, the employer preserves the evidence for the employee’s benefit.

One employer learned that lesson the hard way in Stewart v. Wells Fargo Bank, N.A., No. 5:15-cv-00988-MHH (N.D. Ala. Mar. 14, 2017).  In Stewart, the employee was hired in 2012 and had a documented history of poor performance in 2012 and the first half of 2013.  She received a formal performance warning on June 26, 2013.  When she received that warning, she informed her supervisor that she was having health issues that needed to be resolved.  On July 9, 2013,  Wells Fargo granted FMLA leave to Stewart for neck surgery, and she returned to work on August 26, 2013.

On October 5, 2013, the supervisor sent an e-mail to Wells Fargo’s Human Resources Office recommending termination of Stewart’s employment.  While that e-mail detailed several performance issues, it also stated termination was justified because “Debby submits a request for medical leave.”

Those seven words were sufficient to submit the case to a jury.  The trial court found the statement sufficient to constitute “direct evidence” of discrimination.  Direct evidence is evidence that shows a direct correlation between a discriminatory or retaliatory attitude and the employment action complained of.  Once an employee submits direct evidence of discrimination, the employer’s asserted reasons for termination can only be decided by a jury.  Thus, the trial court in Stewart, refused to dismiss Stewart’s claims and allowed a jury to decide whether poor performance or FMLA leave was the real reason for termination.

Employers should take the Stewart case as a cautionary tale about the necessity of thoroughly training supervisors.  The facts in Stewart indicate that there were plenty of performance reasons for terminating the employee.  But, the supervisor went beyond those reasons and listed protected conduct as a reason for termination.  And, once that reason was listed, the employer was stuck with it.  Employers should carefully train their supervisors on permissible and impermissible grounds for termination, and further train them on the proper way to document poor performance.

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.

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.