Have you ever had to discipline an employee? I assume so. What about one who is or was on leave?– be it FMLA, You’ve probably been told that you need to tread lightly if/when you do. In fact I’ve said so here. That doesn’t mean you can’t discipline an employee who is on leave. In some situations you can even fire an employee who is on leave. You still have to be careful though. It’s all in how–and when– you do it. I’m sure it won’t surprise you when I tell you that there’s a recent court ruling (September 29 to be exact) that is a great example for us. Let’s see what we can learn from it, shall we?
(image from bbc.com)
The US District Court in the Eastern District of Pennsylvania decided Saller v QVC. Here’s what went down:
QVC employed Jennifer Saller as an Assistant Buyer in 2011. Following incidents of allegedly unprofessional behavior toward co-workers in July 2012, QVC placed Ms. Saller on a Performance Improvement Plan, and withdrew it a month later. Ms. Saller had arthritis in both hands. She requested and received leave (4 days )to have surgery on the left hand, in Fall 2012, although she never received FMLA paperwork.
In early 2013, Ms. Saller received a poor performance review (2 out of 5). A few months later, in order to accommodate an appointment for rehabilitation of her hand, Ms. Saller requested that a meeting concerning a product for which she was responsible be re-scheduled. Not only did her supervisor refuse, but she commented that although Saller arrived early to work, she was also regularly leaving work early. The coaching plan that she received on the same day specifically referred to “concerns about the effect of…time out of the office”. That’s not all though. The supervisor also sent a grid to H.R., documenting her absences to give “a clear picture of a deviance of standard work hours as well as how little time Saller spent in the office to recoup for the days where she left or came in late.” In late 2013, Ms. Saller again took a short leave for hand surgery, again received no FMLA paperwork, and again returned to work, apparently without any issue.
In early 2014, Ms. Saller again requested time off in April for hand surgery, once again without any paperwork for or discussion of FMLA. Had it stopped here, QVC might have escaped potential liability. It didn’t, though. A few weeks later, Ms. Saller’s supervisor prepared a formal memo detailing what she felt to be Ms. Saller’s unprofessional behavior, and QVC terminated her employment in March 2014. Ms. Saller sued. You can probably guess that she alleged FMLA interference and retaliation, and failure to designate her leaves as FMLA-qualifying, but can you guess the others? If you are thinking ADA retaliation and failure to accommodate (or ADA discrimination) you are right. You can go to the head of the class.
Let’s look at what the court did with each of these claims and why. After that, we will, of course, look at what we can all learn from the ruling.
QVC moved for summary judgment (essentially dismissal) on Saller’s claims. As to the FMLA interference and failure to designate claims, along with the ADA failure to accommodate claim, the court granted the motion. Here’s why: Even though QVC should have designated Ms. Saller’s leave as FMLA leave, QVC granted all the leave requests and she apparently got whatever benefits she was entitled to under the FMLA. In other words, no harm no foul. The basis for the FMLA interference claim was that QVC should have adjusted her hours and performance expectations while she was on FMLA leave and therefore working fewer hours. In rejecting this claim, the court relied on the absence of any “decision or regulation holding that the FMLA mandates an adjustment in an employee’s workload where said employee takes FMLA-qualifying leave—intermittent or otherwise.” Finally regarding the ADA failure to accommodate claim, the court reasoned that similar to the FMLA interference claim, she received all requests for leave or schedule modifications, and that she in fact was able to perform all her essential job functions.
The court did allow Ms. Saller’s FMLA retaliation and ADA discriminatory termination claims to go forward. Here is where timing can be so critical. Ms. Saller requested leave for future surgery, and then talks about terminating her began. The talks, coupled that with the supervisor’s comments could support a reasonable inference of FMLA retaliation and discrimination under the ADA. The court also found a genuine issue of material fact (that should go to a jury) regarding a gap between her talent profile and ultimate performance ratings.
If I had to boil it down to 4 points you should take from this ruling it would be these:
- If an employee requests leave and is eligible for FMLA, designate that leave as such. For one thing, the 12 weeks’ unpaid leave under FMLA will not start to run if you do not do so. Also, if the employee’s manager understands that s/he is on FMLA leave, s/he may think twice before voicing frustrations out loud, which could give rise to an FMLA interference/retaliation claim.
- An employee’s leave request can trigger an employer’s obligation not only under the FMLA but also the ADA, workers’ comp and maybe state and local leave laws. You may also have your own policies or past practices that will impose certain obligations on you. You should therefore be looking at all these possibilities.
- Timing is (often) everything. Once your employee has requested leave, and particularly if s/he appears to be eligible for it, the timing of your decision to terminate and/or discipline that employee may mean the difference between having to defend or being able to avoid the types of claims QVC found itself facing.
- Train your managers (in addition to your H.R. practitioners): If Ms. Saller’s supervisor were just a bit more knowledgeable of some of the laws regarding employee leave, this case might have gone differently — or might not have happened at all. I might be able to help you there. If you missed the live presentation, you can now get the recording of my webinar, Navigating the Overlap in Employee Leave (FMLA, ADA and Workers’ Comp) — click on that title for more info.
OK, bye for now!
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