A member of the team you supervise is up for a promotion. You reject that team member as you feel s/he is not dependable. Specifically, s/he is out at least once every 2 weeks on what s/he calls “intermittent FMLA”. That same less-than-stellar attendance record provided support for his/her recent negative performance review. The employee renews his/her request for intermittent FMLA. Not long after you find that the same employee violated company policy with respect to services s/he provided a customer. So you terminated his/her employment–and s/he sues alleging FMLA interference and retaliation. But is it? You see, there are some facts missing from this scenario. In a real, live case, a federal judge in the Northern District of Ohio granted the employer’s motion to dismiss the claim. Let’s have a look to see why. The case is Brede v Apple Inc Case No. 1:19-cv-2130 (January 23, 2020). Here’s the nutshell version of what went down:
Andrew Brede began work as a member of Apple’s Genius team in September 2008. In July 2018 he requested intermittent FMLA leave of one day every 2 weeks to care for his niece and nephew due to his sister’s serious medical condition. He applied for and Apple denied him a promotion, citing a negative performance review, that in turn cited “spotty attendance”. He renewed his intermittent FMLA leave request. Shortly thereafter in August 2019, finding him in violation of company policy with regard to a customer’s hard drive, Apple fired him. Mr. Brede sued for FMLA interference and retaliation.
The court had no trouble dismissing Mr. Brede’s claim. Why? He failed to provide an FMLA qualifying reason. Wait. What? Doesn’t the FMLA provide employees up to 12 weeks’ job-protected leave to take care of a family member with a serious health condition? Furthermore isn’t an eligible employee allowed to take intermittent FMLA? Yes and yes. So why was his claim dismissed? First, the FMLA defines a family member as a “parent, spouse or child”. Neither siblings nor nieces and nephews are included in the FMLA’s definition of ‘family member’.
Wait. Isn’t there an in loco parentis exception? Yes, there is. That’s nice, you might be thinking, but what is that? In loco parentis literally translates as “in the place of a parent”. The FMLA refers to an in loco parentis relationship as one where an employee essentially stands in the shoes of a parent toward one or more children that may not be the employee’s biological children. It is a fact-sensitive inquiry, that among other factors, considers whether and to what extent the employee discharges parental functions toward the child or children in question. Couldn’t this employee have had an in loco parentis relationship with his niece and nephew? Yes, but the court reasoned that it did not need to even engage in that analysis. Why not? Even if Mr. Brede did have such a relationship with his niece and nephew, the FMLA would have only allowed him job-protected leave to care for them if they had a serious health condition — which they did not. The children were healthy. The sister was the one with a serious health condition. The court was essentially constrained to dismiss the claim, based on the relatively plain language of the FMLA.
OK, so what are the takeaways for employers?
First: Go back to basics. Review the eligibility criteria for the FMLA. If an employee makes a request for leave, and it doesn’t sound right, check with the FMLA. Occasionally you will get an unusual request and the knee-jerk reaction may be to deny it, only for you to find out that in fact, the request was valid. For example, if Mr. Brede had requested intermittent leave to care for his niece and/or nephew and one or both actually were sick and he could show an in loco parentis relationship he probably would have had FMLA rights. Some employers are not aware of the in loco parentis rule and as soon as they see anyone other than an employee’s parent, spouse or child, may deny an otherwise valid request.
Second: If/when you deny a request for FMLA leave, notify the employee in writing and include your reasons. (You might also want to check with your friendly local employment counsel before sending the notice to the employee to make sure you’ve covered everything). Written notification with sound reasoning could be enough to fend off this type of claim.
Third: Once you determine an employee is not eligible for leave under FMLA, check to see if s/he may be eligible under another law. While Mr. Brede was not, your employee might be. For example, employees looking to take leave to care for their own medical condition could be ineligible for FMLA leave, but the leave might be a reasonable accommodation under the ADA. Some states now also provide Paid Family Leave. For example, had Mr. Brede been working in New Jersey, he might well have been able to receive paid family leave to take care of his sister. Some states and localities also have Paid Sick Leave laws that could cover this type of situation. In other words, even though an employee isn’t eligible for FMLA, s/he may still have rights under another law. If you stop the inquiry too soon, you may miss something — and then end up in court. F
Fourth: When in doubt speak with your friendly, local employment counsel. (C’mon, you knew I’d throw that in, didn’t you?) This seems like a good ending point for now.
Until next time…
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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