Meet Ray.
Ray is to the FMLA as Patrick Mahomes is to football. Ray is an FMLA pro, having taken FMLA leave a total of 158 times over three years. No joke. F-M-L-A simply rolled off Ray’s tongue, enabling him to take leave on countless occasions.
As the story goes, Ray started his latest FMLA journey with a three-week leave of absence for pneumonia.
Ray worked as a mechanic, regularly operating and repairing the loin-puller machine for his employer, a pork-production company. Ray must have loved that loin-puller machine, since he got really salty upon his return to work when his boss told him he would be assigning Ray to a different machine at the plant.
Accusing his employer of “punishing” him for being absent three weeks for his illness, Ray announced that he would “take a vacation until [the employer] figured it out.” [Whatever that means . . . ] His vacation request was summarily denied, since it was not requested in advance as required by policy.
Ray then used the old stand-by: FMLA leave. His wife allegedly had a cardiovascular
disease that would “flare up” several times each month, requiring Ray to care for her. Upon denial of his vacation leave, Ray immediately told his supervisor he was going “home on FMLA” because his wife was “not feeling very good.”
In the days to follow, Ray’s managers came to the conclusion that Ray’s wife did
not need him at home, and that he invoked FMLA leave to hide his true reason for leaving his shift that day, which was his anger at his reassignment. As a result, the company swiftly terminated his employment.
Do You Smell a Rat?
It’s not a stretch by any reasonable measure to find that Ray’s antics stink to high heaven.
You know what also stinks? A court decision that actually breathed life into Ray’s FMLA claims.
Upon his termination, Ray filed an FMLA lawsuit, alleging that the employer interfered with his right to take FMLA leave and instead terminated his employment. Acknowledging that the evidence suggested that Ray’s initial request for vacation indicated that his wife’s condition was not the true motivation for his leave request [ya think?], the court concluded that the evidence also showed his employer may have interfered with Ray’s FMLA entitlement by refusing to treat his absences as covered by the FMLA.
As a result, the court determined a jury needed to decide whether the employer interfered with Ray’s FMLA leave. [Access the court’s decision here.]
Brutal. Just brutal.
Insights for Employers
These kinds of cases are big fat traps for employers. Every bone in our body tells us Ray was up to no good when he used his FMLA excuse to get out of work that day.
But if we act on this reasonable inference, we sadly face the same serious risk that the employer did. Here, an actual court case warns us what can happen if we too quickly hit the termination button in instances like these.
When faced with an employee like Ray, employers seem to have two choices:
- You hit that termination button. It’s the reasonable thing to do, and it makes perfect sense for the reasons identified above.
- You hit the pause button, using the opportunity to reach out to the wife’s physician, explain the scenario, and ask for the physician’s input as to whether Ray’s reason for leave was consistent with his need for FMLA on this specific occasion. [This approach is perfectly defensible under Section 308(e) of the FMLA regs.]
Option 1 often proves successful, as the employee typically realizes that he should rightfully be held accountable for his poor judgment, and he moves on with life and finds a new job, hopefully with the resolve to do better. But option 1 comes with the risk that a termination decision based on these facts alone potentially raises an FMLA claim, as evidenced by the court’s decision here.
Option 2 admittedly is more methodical, but it does several things:
- At a minimum, it sends the message to the employee and the physician that you are not simply going to roll over and allow Ray to misuse FMLA leave in this kind of suspicious manner.
- If you’re lucky and the physician actually agrees with your concern that Ray didn’t have a reasonable basis to take FMLA leave, it arguably lays the foundation for the lawful basis to terminate Ray’s employment.
- It likely saves you hundreds of thousands of dollars defending this FMLA claim at trial, which the employer faces now.
In the meantime, I wish I could just give this employer a big bear hug, cause we all have a “Ray” in our workforce and we pull our hair out every time.