Suppose your employee sustains a work-related injury. We already know that s/he is probably eligible for workers’ comp benefits. What if s/he also needs – or requests–time off to recover? If you have 50 or more employees in a 75-mile radius and if s/he worked at least 1250 hours in the last 12 months, s/he will also be eligible for FMLA leave. So far so good, right? Like many employers, you have call-out procedures, and you expect your employees to follow them. You determine that this employee did not follow those procedures and so you terminate the employee. Lo and behold, the employee sues, alleging among other things, FMLA interference. Who wins? Read on and find out how this played out in the 9th Circuit Court of Appeals recently. The case is Stefany Hazlett v Walmart Stores, Inc. D.C. No. 3:17-cv-00274-MMD-CBC (October 6, 2020). Here’s what went down: Ms. Hazlett worked as an order-filler at a Walmart distribution center some distance from her home, since 2014. On February 25, 2015, she injured her foot while working, filed a workers’ comp claim, and later requested a leave of absence. Walmart offered her a Temporary Alternate Duty assignment (TAD), but she could not accept it, as it required working in the wee hours of the morning, when no public transportation, other than a taxi, was available. Her foot injury prevented her from driving. She, therefore, called out sick every day, believing the absences to be excused, as they were due to a work-related injury. She also provided a doctor’s note. The same day she requested family medical leave, Walmart discharged her.
Walmart used an outside administrator for its workers’ comp cases and leave requests, handling both through two separate departments. Ms. Hazlett alleged that she was unaware that she had to communicate to both departments separately, regarding her workers’ comp claim and her request for a leave of absence. Ms. Hazlett filed an EEOC charge under the ADA. After receiving a “Right to Sue” letter, she filed suit in federal court under the FMLA and the ADA. The District Court granted summary judgment in favor of Walmart on both claims, finding that she did not comply with Walmart’s call-out procedures, that she did not offer evidence that Walmart’s reason for termination was pretextual, and that under the ADA, Walmart did not have to provide transportation or offer a position closer to home.
The 9th Circuit reversed, finding genuine dispute of significant factual issues, warranting a trial (assuming the parties don’t settle). The 9th Circuit also cited the “confusion..about having to notify one company of her workers’ compensation claim and her request for leave by having to contact two different departments within the same company; and [disputes as to] whether Wal-Mart provided Hazelett in writing with notice of any alleged deficiencies from her medical certification and allowed her to cure the deficiency…”. The court also noted that she was given a TAD offer advising that if she did not accept the offer, she could lose her job and benefits. Per the court:
“A reasonable juror could conclude that Hazelett thought she had to sign the form in order to keep her worker’s compensation benefits despite the fact she was likely unable to commute to the offered light duty position. Further, there are issues of material facts regarding whether Hazelett failed to comply with the policy and procedures for requesting leave, and whether such policies were ambiguous. The attempts she made to comply created issues of material facts to be decided at trial.
The court, therefore, found sufficient dispute as to genuine issues of material fact on Ms. Hazlett’s FMLA interference claim. Regarding the ADA claim, the court found that Walmart failed to engage in the interactive process with Ms. Hazlett and in essence, summarily denied her requests for accommodation. Walmart argued that she was physically unqualified to do her job and therefore was not protected under the ADA. Even if that were true, under the ADA an employer must engage in the interactive process with an employee that requests a reasonable accommodation under the ADA. Also, time off to recuperate from a medical condition may be (and in this case likely would be) a reasonable accommodation under the ADA.
The 9th Circuit, therefore, reversed most of the District Court’s ruling and remanded the case to the District Court for further proceedings (ultimately a trial if the parties don’t settle). What are the takeaways for the rest of us? Let’s start with these three for now:
- Make sure your call-out procedures are clear, unambiguous, and that you are consistent in how you implement them. The ones in this case were very confusing. Ms. Hazlett made reasonable efforts to comply but says she didn’t know she had to contact 2 separate departments.
- Remember that if you outsource your leave management cases, the ultimate responsibility for compliance with all family medical leave and disability accommodation laws rests with your company. In other words, if the outside administrator messes up, guess who’s ultimately on the hook!
- Review your call-out procedures and your implementation and tweak them accordingly, so that you can avoid being in a similar situation to Walmart.
I think that’s enough for now. See you 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.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ