Supervisor Personally Liable for FMLA Interference Claims - American Society of Employers - Anthony Kaylin

Supervisor Personally Liable for FMLA Interference Claims

What happens when an employee is hospitalized without notice and informs via a surrogate (her son) that she is in the hospital and won’t be at work?  Should the employer provide FMLA paperwork (assuming the employee is eligible) or terminate the employee for a no call/no show attendance rule violation? 

In Boadi v. Center for Human Development, Inc., No. 14-cv-30162 (U.S. District Court of Massachusetts, September 21, 2017), Boadi worked as a direct care worker at CHD's Bonnyview program, a group home where she provided support to the four male residents with mental impairments. Thomas was

Boadi's direct supervisor.   Pennington was Bonnyview's program manager and Thomas' supervisor. Both had limited training on FMLA.  Trant was Pennington’s supervisor who did have FMLA training.

Boadi was hospitalized from April 15 through April 24, 2013 for mental health issues that unexpectedly manifested itself.  Her son, who took her to the hospital, called and notified that his mother was very ill, was in the emergency room, and was not able to work.  Pennington called Boadi’s son the next day and inquired about Boadi’'s status.  Boadi’s son informed Pennington that Boadi was hospitalized and unable to communicate.  He was uncertain when she would return to work.  The next day Boadi’s son called Thomas and told her essentially same thing.  Thomas, in a second call with the son, directed him to call CHD's human resources (HR) department regarding short term disability benefits (STDB) if Boadi expected to be absent from work for more than five days.

Boadi’s son then called HR about his mother.  The HR representative prepared the STDB packet and FMLA paperwork, including FMLA guidelines, which was signed and dated on April 17, 2013. 

The next day, Pennington called the son and angrily asked when his mother could speak to her.  The son told Pennington she could not speak.  Pennington told the son that he should not call CHD, but Boadi should, and that she should get a medical certificate.  She did not ask anything further about how Boadi was doing.

Pennington then contacted Fitzgerald, the HR Director, on April 20, 2013.  In that conversation, Pennington stated that Boadi violated CHD's no call/no show policy by being absent from work on April 19, 20, and 21, 2013 without personally notifying CHD of her absence as CHD’s policy requires.  Fitzgerald knew that Boadi was hospitalized.  Fitzgerald then drafted a termination letter that Trant signed. Neither Pennington nor Fitzgerald told Trant, who had FMLA training, that Plaintiff was hospitalized.

Boadi was released from the hospital on April 23rd.  Her doctor faxed a certificate to CHD indicating that Boadi needed a leave of absence from April 23 to May 23, 2013 and could return to her full duties on May 24, 2013.  Boadi went to CHD's HR department after her medical appointment where she completed and signed the STDB forms and FMLA paperwork.

On April 23rd, when Boadi returned to complete her STD paperwork, Fitzgerald told her that she violated CDH’s no call/no show policy.  During the first week of May, Boadi received Trant's letter notifying her of her termination from employment with CHD as of April 21, 2013.

Boadi sued for FMLA interference, personally suing CDH and Pennington.  A jury found for Boadi and awarded her $112,592.34 for lost wages and $29,448.90 for lost benefits from April 21, 2013 through the date of the verdict, for a total of $142.041.24.  The Court found that the jury verdict was reasonable.  Boadi, who was eligible for leave, communicated through her son her need for leave.  Pennington, either through ignorance or otherwise, made a case of no call/no show when she had full details of Boadi being hospitalized.  Pennington initiated the termination, which the HR Director should have investigated further.  Neither told Trant, who was trained on FMLA, the reason for not being at work. Both CDH and Pennington were held jointly liable for the damages.

The takeaway for HR is that all managers need to be trained on FMLA.  Ignorance of the regulations and law is no excuse.  When an employee is out, HR needs to ensure that the absence is investigated.  It could be that the employee couldn’t communicate until a later date due to an FMLA qualifying situation.  Most importantly, the employer will have to review the situation and decide based on the facts whether the employee also named in a lawsuit (be it the supervisor or HR) will have legal protection through the employer or not.

If you have employees that need training on FMLA, ASE is holding its Family Medical and Leave Act class on November 29, 9:00 a.m.–12:30 p.m.  This course will provide guidance on how to recognize FMLA notice and administer the law. Participants will discuss how to update company policy and answer employee questions relating to the Family and Medical Leave Act (FMLA).  Register here.  We are also offering Intermittent FMLA:  Regaining Employer Control on November 29, 1:00 p.m.–4:30 p.m.  Click here to register.

 

Source: Ogletree Deakins 10/12/17

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