If you have 50 or more employees, chances are, you’ve dealt with at least one employee taking and returning from FMLA leave. If you’ve weathered at least one recession or other financial ups and downs, you’ve probably had to downsize. What happens when both occur at the same time? What happens when you have an employee go out on and return from FMLA leave and you then eliminate his or her job? Could that be trouble for you? Maybe. Wait a minute, you might be thinking, I didn’t interfere with the FMLA leave, and I need to downsize, and I would have done so whether or not s/he took that leave. What’s the problem? Well, clearly it’s not always that simple. Let’s look at what happened to one employer in Michigan in exactly this situation (of course there are more facts that I’ll share) and see why this employer got into trouble…
(image from timesofoman.com)
Casey Rumph worked for Mandazzo as an account manager in 2014. She disclosed to her manager a previous opioid addiction, along with depression, anxiety, and ADHD, and that she saw a doctor monthly. (She received an accommodation to attend her doctor appointments.) The company underwent some restructuring a few months later, resulting in a new supervisor for Ms. Rumph. The new supervisor, after being copied on an email exchange about company benefits and getting Ms. Rumph’s prescription for Suboxone filled, commented that she couldn’t “fathom what type of prescription would cost that much.” Rumph then alleges that at about the same time the company’s CFO learned of her previous opioid addiction and that his attitude toward her changed. She cites comments by her supervisor, who asked “Does anyone have a Vicodin I can have?”
In January 2016 Ms. Rumph then requested FMLA leave to take care of her mother, who had Stage 4 cancer. Mandazzo counteroffered with six weeks’ unemployment, with the distribution being three weeks at twenty hours per week, and three weeks at thirty-two hours per week. Ms. Rumph declined the offer and instead took FMLA leave in early February 2016. During Ms. Rumph’s leave, the company eliminated her department and offered her a new position with substantially equivalent responsibilities, but some changes in functions. She accepted the offer and returned to work. She then requested and took 2 days off in April 2016. Upon her return she was informed that her new position was being eliminated. Her supervisor testified during a deposition that she was terminated due to: (1) her chronic problems with attendance and punctuality; (2) her inability to perform the finance functions of her position (these functions differed from her previous position); and (3) there not being enough work to keep her busy.
I’m guessing you won’t be surprised that Ms. Rumph sued Mandazzo, and that FMLA and ADA violations were chief among her claims. Mandazzo sued for summary judgment (meaning they basicially looked to get the case dismissed). Mandazzo argued that her conditions were not disabilities under the ADA, and that even if they were, they fired her for legitimate, nondiscriminatory reasons. Mandazzo argued that since it allowed her to take FMLA leave and allowed her to come back to work that it did not interfere with her FMLA rights or retaliate against her for exercising them. The court wasn’t having any of it. The court found that her health conditions are disabilities under the ADA, that there was direct evidence that her termination was at least partially attributable to discrimination, that the nondiscriminatory reasons Mandazzo offered could have been pretextual. Coupled with her termination days after returning to work, the court found evidence that could support an inference that Mandazzo terminated her in retaliation for exercising her rights under FMLA and ADA.
This case beautifully demonstrates why you need to provide training to direct supervisors. There’s a reason why experts say that managers are the leading cause of employee claims in general and FMLA claims in particular. At the very least, your managers need to know that: a) when they get a request for time off they should immediately hand it over to H.R. (or a separate point person if you don’t have an H.R. Department); and b) they need to watch their comments.
Yes, managers may be stressed and they are dealing with what’s immediately in front of them. They therefore may make an off-hand comment that could later come back to bite the company, because it can support a discrimination claim or an FMLA interference or retaliation claim. Whatever you do, don’t have direct managers handling or responding to leave requests. Whether or not there are issues between the manager and the employee, make sure to base leave decisions on legitimate nondiscriminatory reasons. Leave the bias out–which is why the direct supervisor should not be handling any part of the request.
One more point: The ADA, particularly after the passage of the ADAAA in 2008 interprets “disability” very broadly. Think long and hard before you rely on any argument that a person’s health condition is not a disability under the ADA/ADAAA.
Well, on that note, I guess it’s time for all of us to get back to work now. See what I did there?
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