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Chronic back condition, disputed notice issues leave FMLA claims standing

By Joy P. Waltemath, J.D.

FMLA interference and retaliation claims of a terminated manufacturing employee would survive summary judgment, ruled a federal district court in Kentucky, finding the employee’s spinal arthritis, lumbago, and muscle spasms qualified as a chronic serious health condition for which he had twice visited his physician and was receiving medication. Given that the employee called in every day to his supervisor to say he could not work due to back pain/spasms between June 9, when he injured his back lifting heavy windows, and his return August 26, as well as provided two doctor’s notes, the court found material fact issues on whether his employer had notice of his injuries and need for FMLA leave, especially since it provided him a phone number to call to apply for short-term disability. And though his employer claimed it had a legitimate, nondiscriminatory reason for firing the employee five months’ later (recent excessive absences), the employer counted against him absences that occurred during the period of his potentially FMLA-qualifying leave. These issues suggested to the court that although there were many “close calls,” the FMLA interference and retaliation claims were best left to a jury (West v. Pella Corp., October 20, 2017, Russell, T.).

Prior leave. Earlier, during the employee’s second year of employment, he had received FMLA leave when he suffered from severe gum disease that required the extraction of his teeth. At that time, the employee had called into work every day and told his supervisor that he would not be able to work; after a couple of weeks, his employer provided him with FMLA paperwork; he had “filled in the blanks” and gave it to his dentist and then received FMLA leave. Nine years later, he injured his back at work while lifting heavy windows. After trying to make it through his shifts with ibuprofen, he began calling his supervisor to say he couldn’t work due to back pain/spasms.

Physician visits. Two weeks into this absence, he visited his doctor, who diagnosed him with lumbago and muscle spasms and prescribed several medications. The next day he provided the doctor’s note to an HR manager, who gave the employee a phone number to contact for short-term disability benefits. About a month later, his supervisor told him to go back to the doctor, which he did; after X-rays, the doctor diagnosed chronic severe arthritis and degenerative disc disease, in addition to the lumbago/muscle spasms, and prescribed multiple additional medications.

Disciplinary action. When the employee returned to work, he was given two “corrective action letters,” one based on failure to report for mandatory overtime during his absence, and the other for “excessive absenteeism” from the first day he called out until HR received his doctor’s note. He was required to sign both or be terminated.

Termination. Approximately five months later, the employee was terminated after the employer said he had taken six sick days, resulting in a third “corrective action letter” within a 12-month period. There were substantial disputed issues as to these absences however: His supervisor said some of the days were vacation days; the company said he had taken off one day for personal business, but the employee claimed he was already suspended by that date; the employee said he had only taken off one or two of the days his employer claimed he was out, and the remaining days he was training another employee and had been sent home because he was no longer needed “on the line.” Company absence reports said something else—that the employee had missed only one day, and not a day that the employer claimed he was absent; its payroll records contained a mix of vacation and sick days, but also did not account for all the days the employer claimed he was absent.

Chronic serious health condition. Declining to grant summary judgment on the employee’s FMLA interference claim, the court agreed with the employee that his physician’s diagnosis of chronic severe arthritis and lumbago qualified as a chronic severe health condition under 29 C.F.R. § 825.115(c), which requires only two health care provider visits annually and may cause episodic rather than a continuing period of incapacity. He did visit his physician twice; his condition was described as “a chronic one that would flare up from time to time,” and he was prescribed continuing medications. That his physician did not say he could not return to work during this time period was not dispositive to the court; the regs clearly do not require treatment during an absence for a chronic condition to qualify for leave, it reasoned. Thus, the fact the employee didn’t have medical documentation for his entire period of absence did not render him ineligible for FMLA leave for a chronic serious health condition.

Notice. Although the employer claimed the employee had never given it notice of his need for FMLA leave, the court pointed out it was the employer’s responsibility to ask for more information and request, in writing, certification by a health care provider and advise the employee what additional information is needed. Here the employee undisputedly called his supervisor every day for more than two months, which is exactly what he had done nine years earlier, at which time his employer provided him FMLA leave forms. He also provided it with his physician’s notes after both visits—the second occurring after his manager told him he needed to go back to his doctor. In addition, the employer did provide him with phone contact information to apply for short-term disability. Under the circumstances, it was a jury question whether the employer had adequate notice of the employee’s need for FMLA-qualifying leave—and consequently, whether it interfered with his ability to obtain that leave.

Retaliation. The employer claimed that it fired the employee for the legitimate, nondiscriminatory reason that he had that month incurred excessive absences, resulting in a third “corrective action letter” within a 12-month period. Disagreeing, the court pointed first to significant evidentiary disputes as to just which days the employee actually was absent. Second, it noted the employer’s stated reason for terminating the employee was not just his latest absences, but also the two corrective action letters he received during what the employee claimed was a period of FMLA-qualifying leave. Because the employer clearly and undisputedly relied at least in part on absences that may have been protected under the FMLA, as well as the disputed evidence as to whether the employer had notice he was attempting to assert FMLA-protect rights, the court allowed the employee’s retaliation claim to proceed as well.