Jottings By An Employer's Lawyer

Thursday, April 06, 2006

Unable to Return in 12 Weeks? The Impact Under the FMLA

The answer -- of course -- it depends. First, under which theory the suit is brought -- interference/entitlement or retaliation/discrimination. After sorting that out, it could make a difference when the medical evidence demonstrating the employee could not return at the end of 12 weeks was obtained.

This heady discussion of FMLA principles arose when there was a dispute over the due date that an employee was to return the medical certification entitling her to an FMLA leave. On the day that the company argued it was due, it mailed a letter of termination. Before receiving the letter, the employee turned in the certification on the day she believed it to be due, three days later.

That factual dispute precluded summary judgment for the employer on the ground that she failed to timely return the medical certification. However, the undisputed medical evidence showed that the employee was unable to return to work until fifteen months after her twelve weeks of FMLA leave would have ended. The district court granted summary judgment for the employer on that ground.

The Court had partially addressed this issue earlier, holding in Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir. 1998), that an employee who is not able to return to work after 12 weeks has no valid FMLA claim.

Although today's case was ultimately determined to have been brought only under the entitlement/interference theory, the Court also addressed how this fact pattern would play out under the retaliation/discrimination theory, and the potential difference of the impact of the timing of the medical evidence, particularly in light of the after acquired evidence doctrine of McKennon v. Nashville Banner Publishing Co.

That consideration led to a neat (if rather complex) summary of the law, which I would paraphrase as follows:
  1. in entitlement cases, if an employee can not return to work at the end of 12 weeks, an employer is not liable regardless of whether the medical evidence revealing the employee’s inability to return to work is available before or after the termination decision;
  2. in retaliation cases where the medical information is known prior to the termination decision, that would be a legitimate, nondiscriminatory reason for discharging the employee, and
  3. in retaliation cases where the employer learns of the employee’s inability to return to work only after the termination decision, employer will not have a defense to liability, but might be able to limit the damages.

Edgar v. JAC Products, Inc. (6th Cir. 4/6/06) [pdf].

Although all three holdings might be dicta since they extend beyond the facts of the case, a 6th Circuit practitioner ignores them at their peril. If nothing else, they provide a clear road map of the Court's thinking.

And if that were not enough, the Court also had to address plaintiff's contention that she had been unable to return because the termination had exacerbated her condition, arguably precluding her return in a timely fashion. The Court rejected that theory under the FMLA on two grounds: the FMLA regulation on return focuses on whether the physical or mental condition prevents the employee from returning, not on the cause of the condition; and, such a theory would be bad policy:

Because the stress inherent in adverse employment decisions will tend to aggravate most forms of mental or emotional instability, an argument that summary judgment is precluded by factual disputes as to whether the actions of the employer worsened the employee’s mental state and prevented the employee from resuming his or her position could become standard fare.

Nothing about this opinion does anything to change my belief that the swell of FMLA litigation that has until the last year or so been under the radar screen now, and from this point is taking its place in the pantheon of employment litigation. In fact until many of the nuances of a quite complex statute, such as those reflected in this opinion, are definitively decided, it may be a dominant type of employment litigation.


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