To Be or Not To Be FMLA

By Chloé G. Pedersen

We are all familiar with the Family Medical Leave Act (“FMLA”), the federal law that allows eligible employees to take up to twelve weeks away from work, to handle certain family or medical needs. Generally, FMLA regulations apply to an employer if the employer is a private business that employs fifty or more employees in twenty or more weeks in the current or prior calendar year.

Common complaints are that an employee’s rights to take FMLA leave were interfered with, or an employee was retaliated against when taking FMLA. As you would imagine, the common thought is that many employers don’t like being required to hold a position open for someone who may be away from work for as long as twelve weeks. On the other hand, every once in a while, the question of being forced to take FMLA leave arises. An employer might do this, for example, when an employee may qualify for FMLA but opt to use some other offered leave, paid time off, or vacation time instead, or the employer might chose to do this so they can limit the total amount of time an employee is off work. We’ll discuss whether doing so is permitted and what concerns may come as a result of doing so.

While forcing an employee to take FMLA involuntarily has generally been found to be permitted, circuits have placed restrictions on the employer’s ability to do so and have criticized the employer’s motives while generally discouraging the practice. Wysong v. Dow Chemical Co., 503 F.3d 441, 449 (6th Cir. 2007); Hicks v. Leroy’s Jewelers, Inc., No. 98–6596, 2000 WL 1033029 (6th Cir. July 17, 2000). An employer’s actions in doing so have been examined under the theory of FMLA interference.

The question of whether an employer— who has a good faith belief that an employee may have a serious health condition, and thus qualifies for FMLA—can force that employee to take FMLA until the employee obtains a doctor’s certification allowing the return to work, was examined in Walker v. Trinity Marine Products, Inc., 721 F.3d 542 (8th Cir. 2013).

In Walker, the plaintiff, who was a welder, was informed by her employer of their belief that she had a serious health condition, and involuntarily placed her on FMLA leave. Walker was required to remain on leave until she obtained a doctors certificate saying she was fit for work. Walker saw a doctor, obtained the necessary certificate, and returned it to the employer. However, the employer refused to accept the certificate and told Walker to get a second opinion. Walker got a second opinion and was again cleared to return to work. The employer again refused to allow Walker to return to work, and instructed her to go to a specific doctor. This third doctor also cleared Walker to return to work. However, when Walker finally presented her certificate to the employer, she was told that she had exhausted her FMLA leave, and was terminated.

Of course, Walker then sued. Importantly, however, Walker only asserted claims against the employer for interference with her rights under the FMLA and FMLA retaliation as it related to her termination. She would have found greater success had she filed a disability discrimination claim, which covers perceived disabilities even when there is no real disability. See Butler v. State, Louisiana Dep’t of Pub. Safety & Corr., No. CIV.A. 12-00420-BAJ-RLB, 2014 WL 6959940, at *9 (M.D. La. Dec. 4, 2014); see also Vorgias v. Mem’l Health Sys., Inc., No. 2:12-CV-218-RLM-PRC, 2012 WL 5947773, at *6 (N.D. Ind. Nov. 27, 2012)(Court finds that Plaintiff’s ADA discrimination and failure to accommodate claims share a common core of operative facts with the FMLA claims originally pled.).

Analyzing Walker’s claim, the District Court found that: (1) the employer had not yet interfered with her FMLA rights; and, (2) she could not assert a claim for FMLA retaliation because she could not show that she had actually engaged in “protected activity.”

On appeal Walker argued that, among other issues, because the employer forced her to take FMLA when she did not need it, it interfered with her ability to take FMLA when she actually needed it. Walker cited the highly criticized Sixth Circuit case, Wysong v. Dow Chemical Co., in support of her position. As for Walker’s retaliatory termination claim, she argued that because she had utilized FMLA, she had “engaged in a protected activity” within the meaning of the FMLA.

The Walker Court found against Walker on each of her arguments. First, the court clarified Wysong, stating that because Walker was not actually denied FMLA leave, her claim for interference was not ripe:

[t]he Sixth Circuit emphasized that [a claim for interference based on forced leave] “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.” Wysong, 503 F.3d at 449. … In our view, 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.

As for Walker’s retaliatory termination claim, the Court quickly dismissed it, finding that because Walker had admitted that she never suffered from a serious health condition, she was not covered by the FMLA, and was therefore not entitled to its anti-retaliation protections.

While Walker represents a success for the employer, had the attorneys for Walker explored what the employer was motivated by, the outcome may have been much different. Thus, raising the question- what if the employer forces the employee to take FMLA leave in bad faith? That is, the employer knows the employee may not qualify for FMLA, but forces them to take leave anyways as a means of discriminating against that employee and creating a situation in which the employer merely needs to wait out the employee’s FMLA before terminating them? As Walker demonstrates, a non-eligible employee usually cannot maintain a claim for FMLA interference unless it actually (as opposed to hypothetically) interferes with their ability to utilize FMLA leave later on. However, if an employer forces someone to take FMLA for a discriminatory purpose- say to get rid of someone in a protected class, that employee might have a claim for discrimination. And, as discussed above, because an employer must effectively perceive that the employee has a disability in order to force an employee onto FMLA, it has also opened itself up to potential liability under the ADA.

In the end, the risk of forcing an employee to take FMLA may not be worth the reward. But, employers are encouraged to be vigilant and keep your employees informed of their rights.

This article originally appeared in the WBAI Fall 2015 Newsletter.

pedersenChloé Pedersen is an attorney at Fletcher & Sippel, LLC where she counsels businesses on labor and employment matters and litigates employment discrimination cases.  She serves on the WBAI Board of Directors and co-chairs the Employment Law, Judicial Reception, Mentor/Mentee and Newsletter Committees of the WBAI.