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Healthy employee not entitled to FMLA protections when employer forced her to take leave and fired her for exhausting it

September 18th, 2013  |  Joy Waltemath

Ever read a case that just keeps nagging at you? An opinion from the Eighth Circuit this past July won’t leave me alone (Walker v Trinity Marine Products, Inc).

Here’s what happened. For reasons explained neither by the district court nor the Eighth Circuit, an employer believed its employee suffered from a serious health condition. What condition it believed she suffered from was never revealed. Nonetheless, in May 2009, it put her on involuntary FMLA leave and required her to obtain a fitness-for-duty medical certification to return to work. She did. The company wouldn’t let her return to work, however, and required a second medical certification. She saw a second doctor who also deemed her fit to work without restrictions in June 2009. Again, the company would not allow her to return to work and instructed her to see a physician at Vanderbilt University Medical Center, about 200 miles driving distance. The Vanderbilt physician examined her twice during July 2009, determined she was able to return to work without restrictions, and sent a letter so stating to the employee on September 2, 2009, which she promptly turned over to her employer. But when she did, her employer told her – whoops – she had exhausted all available FMLA leave in August, so she was fired.

Just let that sink in.

The employee sued, believing her employer interfered with her rights under the FMLA by placing her involuntarily on FMLA leave while she was healthy, exhausting her leave, and then refusing to permit her to return to work after receiving being certified fit to work. She also asserted that it unlawfully fired her because she attempted to exercise her right to return to the position that she held prior to taking leave. Moving to dismiss, the employer reversed its position, claiming that because she never suffered from a serious health condition that would have entitled her to FMLA leave in the first place, she was not entitled to the protections of the Act. The district court dismissed her claims, and the Eighth Circuit affirmed.

You must be entitled to leave, not just eligible, to be protected. Basically the Eighth Circuit’s reasoning was this: If forced leave can amount to interference with a right provided under the FMLA, it can do so only if the employer’s action prevents the employee from using benefits to which she is entitled under the Act, which it interpreted narrowly. Noting that it had not decided whether placing an employee involuntarily on FMLA leave was a form of interference under the FMLA, the court said that, even assuming there was such a cause of action, the employee’s claim wasn’t viable.

Why? She argued that the employer interfered with her FMLA benefits because, by forcing her to take leave when she did not have a serious health condition, it interfered with her right to use FMLA leave if and when she actually needed it. But the Sixth Circuit precedent on which she relied held that being forced to take leave could be a type of “interference claim” that “ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.” Because she got the right to a certain amount of leave under the Act – in fact, her employer forced her to take it all – the Eighth Circuit said her claim was properly dismissed.

The point the court seemed to miss was that the employer’s action actually did foreclose her from taking leave at a later date – it’s tough to wait around until your claim has “ripened” when you’re fired and your “claim for benefits” can never ripen. Perhaps the situation here is more analogous to the Eleventh Circuit’s 2012 decision in Pereda v Brookdale Senior Living Communities, Inc, which found that employees are protected from FMLA interference prior to the occurrence of a triggering event — even employees who are not yet eligible for FMLA protection — because to hold otherwise “would violate the purposes for which the FMLA was enacted.” There the Eleventh Circuit refused to allow an employer to fire a pregnant employee, instead finding her pre-eligibility request for post-eligibility FMLA leave was protected from interference.

Return to work not protected. The employee also claimed that her employer interfered with benefits to which she was entitled under the FMLA when it refused to permit her to return to work, even after she received multiple certifications of her fitness to do so (notably, the employer had no  right under the FMLA to obtain multiple certifications of her fitness for duty; see below). The Eighth Circuit disposed of this in one sentence: “Because Walker admits that she never suffered a serious health condition within the meaning of the Act, we conclude that she has no right to the benefits provided by the FMLA.”

Any equitable estoppel here? Given that it was her employer’s insistence that she had a serious health condition – not just a “mistaken belief” as the court so quaintly characterized it — the employee argued that, despite the fact she was proven healthy by three employer-required medical certifications, equitable considerations should prevent the employer from denying that she was entitled to FMLA protections. She said the company should be bound by its own decision to treat her as having a serious health condition when it required her to take FMLA leave.

Again, the court missed the point. First, the court said that if equitable estoppel applied in the FMLA context, she would have to “show that she has changed her position to her detriment in reasonable reliance on another’s misleading representation.” The court said her only colorable argument of reliance was that she sought several medical opinions due to the employer’s insistence she had a medical condition, and her “inconvenience” was “not a cognizable detriment for purposes of an estoppel claim invoking the FMLA.” Plus, the court tacked on the fact that FMLA interference damages are limited to “actual monetary losses sustained by the employee as a direct result of the claimed interference.” First, what she relied on was that, if she obtained a fitness for duty certification (or two, or three), she would be allowed to return to work. It wasn’t the inconvenience of the medical certifications; it was the job loss that was to her detriment. As for actual monetary loss? Typically that does result from losing one’s job.

Termination for exceeding leave. The appeals court also found that the employee could not state a claim for unlawful discrimination based on her termination after she sought restoration to her position – because her leave ( the court conveniently ignored the fact her leave was involuntary and employer-imposed) was not for an “intended purpose” of the FMLA, resulting in no statutory restoration rights. “The employer’s mistaken belief that she had a serious health condition could not entitle her to the benefits of the FMLA,” the court concluded. Yet why did the employer’s “mistaken belief” – willfully obstinate in the face of medical evidence – entitle it to hide behind the FMLA, place the employee on involuntary leave, and require her to obtain three medical certifications, all of it ignored when they certified she was fit to work without restrictions?

What do the regs say? The employer’s right to seek a medical fitness-for-duty certification is carefully circumscribed by Sec. 825.312 of the regs, which clearly state that “the employer may not delay the employee’s return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required.” Other medical certifications under the general certification rule in Sec. 825.305 assume that an employee’s request for leave will initiate the certification requirement. Even then, the requirements for second and third medical opinions clearly contemplate that “the third opinion shall be final and binding” – on both the employer and the employee.

Regarded-as claim? It may be, as the court mentioned briefly, that a legislative remedy is required to provide for claims based on an employer’s perception of an employee’s health – a “regarded-as claim,” as it were. And it’s clearly possible that there were facts carefully undisclosed by both courts here that somehow shifted the equities. Nonetheless, the case currently can be cited to allow an employer to use the FMLA with impunity as a bad-faith weapon against an employee who, for whatever reason, it wants to fire.

The stated purposes of the FMLA are to balance the demands of the workplace with the needs of families, to entitle employees to take reasonable leave for medical reasons, and to accomplish those purposes in a manner that accommodates the legitimate interests of employers. Really, how does protecting an employer’s forcing of involuntary leave on an employee, which results in her termination for exhausting that leave despite multiple medical certifications confirming her fitness for duty, advance those purposes?