Despite Employee’s FMLA Certification, Employer Wins Summary Judgment After Terminating Her for Absences

The Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) exist, in part, to provide job protection for employees who suffer from serious medical conditions.  If an employee is either certified as having a serious health condition, or makes a request for accommodation after being diagnosed with a medical restriction, they garner statutory protection which makes them difficult to terminate for reasons relating to their medical conditions.

In Evans v. Cooperative Response Center, the plaintiff, the company’s lone receptionist, was diagnosed with reactive arthritis, an autoimmune disease with symptoms such as gastrointestinal illness, oral lesions and joint pain.  After her diagnosis, Evans’s doctor informed CRC that she would need two half days off per month for appointments and up to two days off per month for flare-ups.

CRC had a “no-fault” attendance policy, where employees could accrue up to ten points for absences in a year prior to being terminated.  Absences that were not FMLA-eligible were credited with either a half-point or full point, depending on their length.  All staff were informed that regular attendance was an essential function of their position.

After she was diagnosed, Evans took several days of intermittent leave over the following months, but was terminated after she received her eleventh point in less than a year.  In her termination notice, Evans was advised that CRC was terminating her employment for excessive absences in violation of the company’s attendance, conduct, and work rules policies.  Evans sued for both disability discrimination and alleged violations of the FMLA.

It was clear that the plaintiff was suffering from a health condition that limited her ability to work, and had already been certified for intermittent FMLA leave.  So, what did CRC do to protect itself from liability?  It paid attention to detail.

First, it was incredibly important to CRC’s case that it made regular attendance an essential function of her position.  The district court found that because her presence was necessary, her continued absences made her unable to perform the essential functions of her position, and thus could not make her prima facie case for disability discrimination.  And although Evans was on FMLA when the absences took place, courts have stated that “intermittent FMLA leave does not excuse an employee from the essential functions of the job.”  Because she could not perform an essential function of her job, she could not even argue a claim of failure to accommodate.

In regard to her FMLA claims, the court found that CRC only deducted points from Evans’s absence total when her requested leave either did not follow proper call-in protocol or was above and beyond her allotted intermittent FMLA leave time.  The court found that on three separate occasions, Evans failed to give the proper notice required under the employer’s policy, as she was advised to do once her FMLA certification was approved.  On two other occasions, Evans failed to provide a reason for her leave related to her FMLA leave or reactive arthritis.  As the leaves were not covered by her certification, they were not considered exempt from the no-fault policy.  The court stated, “CRC was not required to guess whether Evans needed FMLA leave when she called in; she was required to affirmatively invoke the FMLA.”

Finally, the remaining absences were the result of Evans taking leave beyond her regular FMLA allotment of three full days in a month.  Despite CRC sending Evans’s doctor a recertification form asking if she was in need of additional leave, and Evans arguing that she needed more leave, CRC never received notice that Evans would need anything more than her allotted days every month.  Because of this, it was able to charge her absences under the no-fault policy, ultimately resulting in her termination.

Many times, employers believe that once an employee receives an FMLA certification, that they are invincible against the employer’s attempts to control absences from work.  This case shows that with great attention to detail, and constant monitoring of an employee’s leave, that issues with absences can be resolved despite an employee’s FMLA certification.  If you, or your organization, are having issues keeping your employee absences in check, contact the Wiley Law Office, for leave management experience that works.