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May 30, 2012 | HR Compliance | Posted by Tiffany S. Fordyce

Consider FMLA Implications When Disciplining an Employee for Unauthorized Absences

A recent Middle District of Florida decision highlights the need for employers to consider implications under the Family and Medical Leave Act (FMLA) when disciplining an employee for unauthorized or excessive absences. In Hoopingarner v. Corinthian Colleges, Inc., an employee fired for excessive absences claimed the employer interfered with his FMLA rights by characterizing FMLA qualifying leave as unauthorized absences.

The court rejected the employee’s claim with respect to time he took off to care for his sick wife. Although his wife indisputably suffered from several serious health conditions, the record showed that she largely was capable of caring for herself (e.g., she could bathe, eat, drink and dress herself on her own; she could drive to her own doctors’ appointments unassisted), and did not request or desire assistance from her husband. The court concluded that plaintiff’s wife “frequently got by without any care” provided by the plaintiff, and any such care could be given after work hours.

The court also rejected the employee’s claims with respect to some time that he took off of work to address his own medical issues. The employee attempted to assert that regular sick days that he took during his employment should have been counted as protected FMLA leave. The court largely disagreed, noting that “an employee’s bare assertion that he is ‘sick’” generally is insufficient to put an employer on notice that an employee may be entitled to FMLA benefits. The FMLA does not require employers to “play Sherlock Holmes, scanning an employee’s work history for clues as to the undisclosed, true reason for an employee’s absence.”

However, on one occasion, the employee provided sufficient details of his illness such that the employer should have been on notice of a potential FMLA qualifying event. This “heightened notice” included informing the employer that he visited the emergency room and needed an out-patient surgical procedure. The court held that a reasonable jury could find that sick days associated with this episode may qualify as protected FMLA leave. Similarly, there was sufficient evidence that the employer grouped all of the employee’s sick leave together when it evaluated his poor attendance record, including those sick days that should have been counted under the FMLA. Consequently, plaintiff was prejudiced by taking FMLA protected leave because the employer included that time in deciding that he should be terminated.

The Hoopingarner case serves as an important reminder that, in many instances, employers must exclude protected leave taken by an employee when it assesses that employee’s job performance and/or evaluates his or her attendance record. In addition, this case reiterates the importance of the regulations that discuss employee notice requirements. See 29 C.F.R. §§ 825.302 & 825.303. While employees must “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request,” the employee may not be obligated to “expressly assert rights under the FMLA or even mention the FMLA.” The onus remains on the employer to properly assess the information provided by the employee and make a determination on whether the employee may be entitled to FMLA leave.

©2012 Greenberg Traurig, LLP. All rights reserved.
(Reprinted with permission from The National Law Review)

Tiffany concentrates her practice on commercial litigation, with an emphasis on labor and employment. Her employment litigation practice includes all types of discrimination and retaliation claims, wage and hour claims, trade secret infringement claims and WARN Act defense. Tiffany has worked on class actions in many different areas of the law. Her general litigation experience includes breach of contract, real estate, copyright and trademark infringement, civil rights defense, unfair competition claims and defense of consumer rights claims.