Failure to Communicate Leads to FMLA Liability - American Society of Employers - Anthony Kaylin

Failure to Communicate Leads to FMLA Liability

Under FMLA regulations, employers are required to provide multiple types of notices to the employee, when the employee requests FMLA leave.  One of those notices is to provide the employee with information about the amount of time available under FMLA leave.   Failure to do so could lead to unintended consequences for the employer.

Amanda Dusik worked for Lutheran Child & Family Services (LCFS) of Illinois when she took leave to undergo knee surgery because she had a torn ACL and meniscus in her right knee. Dusik was a full-time employee who worked for LCFS for the previous five years before taking FMLA leave.

Her doctor told her that she should take three to six months of leave due to her injury and to recover from surgery. Dusik requested to be updated by a manager about her hours and how much leave she had left.  LCFS only advised Dusik only her leave was being designated as FMLA leave beginning on March 31, 2015.  On April 6th she had the surgery.

After the surgery, Dusik was completely immobile.  After being off for several months, she informed her manager that she was taking physical therapy three times a week and getting better.   Again, she told her supervisor she would need at least three to six months off to get better.  However, Dusik’s supervisor never updated her on the number of hours or days she had left under the FMLA leave or that she would be terminated if she did not return to work by a certain date.

After the FMLA leave had expired, LCFS terminated her.  Dusik then sued for FMLA interference and under the ADA for failure to accommodate.  LCFS moved for summary judgement, which was denied.

First, LCFS never provided any notice of time available for FMLA, other than it designated the time off as FMLA time.   The regulations specifically require that “the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice.”   If, however, the amount of leave the employee needs is unknown at that time, “then the employer must provide notice of the amount of leave counted against the employee’s FMLA leave entitlement upon the request by the employee, but no more often than once in a 30–day period and only if leave was taken in that period.”   Neither at the time of the request nor when she updated her supervisor was Dusik informed of the FMLA time remaining.  She was simply terminated once her time ran out as calculated by LCFS.

Moreover, Dusik’s injuries were found to be ADA qualified by the Court.  LCFS felt that since the injury was simply to be short-lived, it was not an ADA eligible disability.  The Trial Court disagreed.  Dusik alleged that if she had known about the time remaining on the FMLA leave, she would have returned using a knee brace and could have still had done her job, albeit with some additional reasonable accommodations.   LCFS never initiated any discussion with Dusik about her coming back to work.

To make matters worse for LCFS, it had precedent of granting up to six additional weeks off for others who needed additional time off.  That was never discussed with Dusik.

Given the nature of the case, the issue of notice is very simple.  However, taking liberties of reading into the situation presented, one could speculate that LCFS was using the FMLA leave as a means of terminating Dusik, where there may have not been any documentation of prior performance issues.  As a general rule, if an employee cannot return on a timely basis after an FMLA leave, the employee can be terminated.  Yet, sometimes, even if it is “painful” to the employer, it is better to slow down and ensure all bases are covered before terminating the employee.  If not, FMLA violations could be attached to the person making the decision to terminate.

 

Source: Dusik v. Lutheran Child & Family Services of Illinois, No. 16 CV 10812 (Northern District of Illinois, Eastern Division, 4/24/17), Jackson Lewis May 3, 2017

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