It may seem as if courts always side with the employee in cases where the FMLA is in play. But a couple of recent court verdicts show there are situations where courts are more than willing to side with the employer.
A closer look at how the companies handled themselves in these cases provides employers with a good idea on what to do if they’re confronted with problematic FMLA issues down the road.
‘Good faith efforts’ and certification
In Brookins v. Staples Contract & Commercial, Inc., a court had to decide whether the employee had done enough to obtain medical certification — and whether her absences should’ve been covered by FMLA leave protections.
Background: Ronita Brookins was working for Staples Contract & Commercial, Inc., when the breast cancer she had been treated for in the past resurfaced. During the period when her cancer returned, Brookins had a number of unexcused absences that put her on the verge of being fired.
When the company let Brookins know about her attendance problems, she told them about the return of her cancer and let them know the missed work time was directly related to her cancer.
The company then asked her to provide medical certification within 15 days. So Brookins called her two primary physicians and asked them to complete the certification. However, they refused to, and Brookins didn’t pursue the issue any further.
When Brookins missed the 15-day deadline, she was given a seven-day extension, and again she failed to provide certification.
After that, the company gave her another extension, which also passed without Brookins providing the requested info. Finally, after about a month’s time, the company converted Brookins’ leave into unexcused absences and fired her as a result of the missed time.
When she was terminated, Brookins sued the company for FMLA interference and retaliation.
What the court said: The court dismissed Brookins’ FMLA suit because she failed to make “diligent efforts” to obtain medical certification. The court pointed out that under the FMLA, if an employee doesn’t provide certification, the employer can deny FMLA coverage until that coverage is provided. And any absences during that time can be considered unexcused, which could subject the employee to termination.
This ruling, while unfortunate for Brookins, shows that employees do have certain responsibilities under the FMLA. If workers don’t make any effort to get the proper certifications completed, employers are well within their rights to take disciplinary action against them.
In a post on his blog, FMLA Insights, employment attorney Jeff Nowak listed a number of actions Brookins could’ve taken to show she was making a good faith effort to obtain certification, such as:
- Following up with her physicians after the initial request was denied and explaining how important the certification was for her, or
- Asking any of the additional specialists she visited during treatment for certification.
The fact that she didn’t take any action after the initial certification request was what ultimately cost Brookins this case.
Leave isn’t a vacation
Lineberry v. Richards answered the question, “What actions should employers take when they’re presented with evidence an employee is abusing his or her FMLA leave?”
Background: Carol Lineberry was working as a nurse at Detroit Medical Center when she took FMLA leave due to “excruciating pain in her lower back and leg pain.” While on leave, Lineberry was restricted to standing for only 15 minutes, not pushing or pulling more than 20 pounds, and not lifting more than 5 to 10 pounds.
Despite these restrictions, Lineberry posted pictures of herself on Facebook, which showed her vacationing in Mexico. And the photos showed Lineberry holding her grandchildren — a clear violation of her lifting restrictions — and cruising around on a speedboat. She even wrote an email to her supervisor about the fact she didn’t receive a get-well card from anyone in her department.
On top of all that, she claimed that she wouldn’t have taken the trip if the airports didn’t have wheelchairs to assist her, which proved to be a lie (more on that later).
When the company caught wind of what Lineberry was doing during her leave, they fired her. But rather than just rolling over, Lineberry sued the hospital, claiming it fired her because she took FMLA leave.
What the court said: Luckily the court didn’t fall for Lineberry’s absurd argument, and it sided with the company. In addition to the photo evidence that showed Lineberry violating her leave restrictions, she admitted during her deposition that she had actually lied to her employer about using wheelchairs during the vacation.
Because the hospital had a specific policy against falsifying info and dishonesty, the court ruled that firing Lineberry for violating that policy was justifiable. The court also said the hospital could’ve used the FMLA’s “honest belief” provision as a reason for terminating Lineberry.
Under the honest belief rule, when a company has reason to believe — based on a series of facts — that an employee lied and misused his or her FMLA leave, it can rightfully use that belief to discipline or terminate the employee.
Documentation: The key to a solid defense
These verdicts show that employers shouldn’t be afraid to fight back when they know they’re in the right regarding FMLA issues.
But the key to proving an employee is abusing his or her leave, or safeguarding your own firm against faulty allegations of FMLA violations, is proper documentation. A solid paper trail is the best way to come out on top in court.
In both of these cases, the companies had clear evidence — the multiple leave extensions and the Facebook photos — to back up their actions.