Recently, the U.S. Court of Appeals for the Third Circuit
issued a decision that raises the bar for employers seeking summary judgment on
claims raised under the Family and Medical Leave Act (FMLA) for interference
with protected rights and retaliation for taking FMLA leave.
In Lupyan v. Corinthian Colleges, Inc., the court concluded
that an employer’s failure to provide notice to an employee that her leave
would be characterized as leave under the FMLA could constitute interference
with FMLA rights if the employee demonstrated that she was prejudiced by that
action. The court also concluded that the refusal to reinstate an employee may
constitute retaliation, even when the employee is unable to return to work
until after the expiration of the FMLA’s 12-week leave period.
The Lupyan plaintiff was an instructor at the defendant
college. She requested a “personal leave” but submitted a Certification of
Healthcare Provider (the U.S. Department of Labor form typically used to
support a request for FMLA leave) indicating that she could not work due to
medical reasons. The college’s human resources department determined that the
plaintiff was eligible for leave under the FMLA, and instructed her to fill out
paperwork requesting an FMLA leave.
While the plaintiff’s rights under the Act were never
discussed in the leave process, the employer contended that it sent plaintiff a
letter advising that her absence had been designated as FMLA leave. The
plaintiff contended that she never received the letter. When the plaintiff
attempted to return to work after 14 weeks of leave, she was told her
employment had been terminated because she had not returned within 12 weeks and
because enrollment had declined.
The Interference
Claim
The plaintiff sued, alleging that the failure to inform her
that her leave had been designated as an FMLA leave constituted an interference
with her rights. She claimed to be unaware that she had to return within 12
weeks, and argued that she would have structured her leave differently had she
received proper notice.
The employer contended that plaintiff had notice of her FMLA
rights through the employee handbook, which contained a general summary of the
law. The Third Circuit found this insufficient to provide the required
individualized notice at the time of leave. The court also rejected the
argument that the letter met the notice requirement because there was
insufficient evidence of receipt. Although proof of mailing creates a
presumption that a letter was received, this can be rebutted with evidence (in this
case, an affidavit from the plaintiff) that it was not. The Third Circuit noted
that the letter was not sent by certified mail or other method which would
provide proof of delivery. Therefore, the court reversed the grant of summary
judgment in favor of the employer.
The Retaliation Claim
That the plaintiff sought to return to work after expiration
of the FMLA’s maximum 12 weeks of leave did not preclude her retaliation claim.
Recognizing that a retaliation claim’s focus is on the defendant’s actions, both
during and after the leave, the court held that an employee is not precluded
from bringing a retaliation claim simply because her need for leave extends
beyond the 12 weeks. Here, because the college gave conflicting reasons for
termination, and the termination occurred in close proximity to the conclusion
of her leave, the court concluded a jury could find that the college fired the
plaintiff in retaliation for exercising her FMLA rights. Thus, the Third
Circuit also reversed the grant of summary judgment on the retaliation claim.
Practice Pointer
As a result of the decision in Lupyan, employers should
confirm that their FMLA policies ensure that workers are provided with prompt
notice both of their rights under the Act at the time the leave is granted, and
also that their leave has been designated as leave under the FMLA. This notice
also should state the dates of the leave, and the required date of return. If
mailed, it should be sent via a method that creates evidence of delivery.
Finally, although not raised in Lupyan, other laws often
come into play when an employee requires a leave beyond the FMLA's 12 weeks.
For example, the Americans with Disabilities Act requires that an employer make
a case by case assessment of such requests, determining in each situation
whether the requested extension constitutes a “reasonable” accommodation. Thus, even when required notice is provided,
employers should not automatically terminate the employment of workers who are
medically unable to return within 12 weeks.
Attorneys in Ballard Spahr's Labor and Employment Group can
assist clients in FMLA compliance and other workplace issues. If you have
questions, please contact Denise M. Keyser at 856.761.3442 or
keyserd@ballardspahr.com, Emilia McKee Vassallo at 215.864.8111 or
mckeevassalloe@ballardspahr.com, or the member of the group with whom you work.
Source: Ballard Spahr's Labor and Employment Group
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