Not long ago, I posted about an employer who won summary judgment in an FMLA case and noted five things that the employer did right, which helped it win.

Sad to say, a decision came out last Friday in which an employer lost an FMLA case on summary judgment and will face a jury trial, assuming the parties don’t settle. Jury trials are expensive, disruptive, stressful, and expensive. I said “expensive” twice on purpose. Not good news for this employer.

Given that, and given my recent upbeat post, I thought I'd post about this “sad case,” with five negative lessons that might be helpful to employers.

Before I start, a word of explanation. You will see that I have used “allegedly” a lot in this post. If a court grants summary judgment to the employer on all claims, the case is over. But if the court denies summary judgment, that doesn't necessarily mean that the employer loses. All it means is that the case (or claim) goes to trial and a jury will decide whether the employer did anything wrong. In this case, it's still possible that the jury will find that the employer did not violate the FMLA. Hence all my "allegedly"s. (Or should that be "allegedlies"?)

What happened (allegedly)

Kristina Kelley was a Supervising Producer for a media company. Among other things, she was responsible for “coordinating guest commitments and booking for taping schedules, overseeing TV taping days, and making recommendations for program testing and improvements.”

Ms. Kelley had a stroke in October 2020, and shortly afterward requested continuous leave under the Family and Medical Leave Act. The employer granted her request and backdated it to the date of her stroke. So far, so good.

While she was on leave, Ms. Kelley was inundated with calls and emails from her co-workers. About work-related stuff. Allegedly.

In January 2021, Ms. Kelley was ready to "officially" return to work. The employer’s insurance carrier had a “Work Incentive Program,” which allowed her to work part-time and gradually build up her strength so that she could resume full-time work. She provided a note from her doctor restricting her to 10-15 hours a week.

In February 2021, the employer informed her on a conference call that it was going to restructure her position as “Studio Manager/Technical Director.” The restructured position would require more technical editing duties, which Ms. Kelley allegedly could not handle. The employer said that Ms. Kelley would be placed on “inactive status” but would be considered for the new position or other vacant positions when she was able to return to work full-time. This news allegedly caused Ms. Kelley to suffer what the courts call severe emotional distress.

In June 2021, while she was still “inactive,” the employer terminated Ms. Kelley’s employment.

Ms. Kelley sued, alleging FMLA interference and FMLA retaliation. The court denied the employer’s motion for summary judgment on both claims, meaning that she will get a trial – an expensive, disruptive, stressful, not to mention expensive, trial – and that a jury will make the final decision as to whether the employer is liable.

What 5 things did this employer (allegedly) do wrong? 

Maybe nothing. But if we believe Ms. Kelley, plenty.

No. 1: Don’t let employees work while on continuous FMLA leave. As the court noted, some de minimis tasks have been okayed by the courts – such as checking in a couple of times to see when the employee will be ready to return to work. But I wouldn’t even do that. When an employee goes on “block” FMLA leave (as opposed to intermittent leave), smart employers will cut off access to the system and make sure the employee's bosses and even co-workers know not to call. Exceptions allowed for “Thinking about you!” and “Hope you’re doing well!” messages, as long as that is all there is in the message. Better yet, just send flowers so you can't discuss work no matter how much you may want to.

(But do explain to the employee in advance that you are doing this to let her focus on her recovery and not because you don't care.)

An added bonus: If you prohibit all work during unpaid FMLA leave, you won’t have to worry about issues under the Fair Labor Standards Act or state wage-hour laws. Under the FLSA, an exempt employee must be paid in full for any workweek in which he or she performs any work. Exceptions are limited. Nonexempt employees must be paid for any time that they actually spend working. If the employee on leave isn't working at all, then you'll be good.

No. 2: If you want to restructure the position of an employee on FMLA leave (or soon after they’ve taken FMLA leave), be very, very careful. Sometimes this can’t be avoided. But always consult with your employment counsel first. And there should be documentation supporting the legitimate business need for your decision. In this case – at least, according to the court – there was no documentation to support the restructuring, apart from documentation relating to Ms. Kelley’s leave status. Ugh. What’s more, the court said that Ms. Kelley’s last performance appraisal did not indicate that she had any technical deficiencies.

No. 3: If you offer a “work hardening” program, give the employee a reasonable chance to “harden.” Don’t put them in the program and then promptly replace them because they aren’t progressing quickly enough.

According to the court decision, the employer argued that Ms. Kelley couldn’t perform the essential functions of her job because she could work only 10-15 hours a week. But Ms. Kelley said that her doctor authorized 10-15 hours a week only to allow her to qualify for the insurance company’s Work Incentive Program. She indicated that she would have been willing to work more hours if she’d known that she had to, and (according to her, at least) her doctor might have authorized her to work more hours.

No. 4: If a “problem employee” goes out on FMLA leave, don’t view the leave as your opportunity to show them the door. It could be that Ms. Kelley was a lousy Supervising Producer but that her bosses were unwilling or afraid to do anything about it before she went out on leave. That happens. But if it does, you can’t seize on the FMLA leave as your big chance to make up for all your prior wimpyness.

In other words, you are better off letting your problem employee return to work, clearly communicating your performance standards going forward, and then addressing any performance issues as they arise. With documentation. If your employee was a good Supervising Producer but you need someone with more technical expertise, then consider giving her a chance to obtain the needed expertise after she's back from leave.  

No. 5: Never forget that your disability accommodation obligations are in addition to, not instead of, your FMLA obligations. This case was from Arizona, and the Arizona Civil Rights Act prohibits discrimination based on disabilities and requires employers to make reasonable accommodations. Even if your state doesn’t have one of these laws, you still have to comply with the federal Americans with Disabilities Act if you have 15 or more employees. In this case, I feel sure that Ms. Kelley’s stroke was enough to give her protection under the ADA, and probably the ACRA. There is no indication from the court’s decision that Ms. Kelley sued for failure to accommodate. But think how much stronger the employer’s FMLA defenses would have been if it had considered the reasonable accommodation angle:

• Ms. Kelley would have exhausted her 12 weeks of FMLA leave.
• Ms. Kelley still would have been offered the “work hardening” program when she was able to return in some capacity.
• If the employer needed for Ms. Kelley to be able to work more after a month of working 10-15 hours a week, it would have engaged in the interactive process with her to determine whether she could increase her hours with her doctor’s approval, or with other accommodations.
• If the employer needed to restructure the position, it would have engaged in the interactive process with Ms. Kelley to determine whether she could perform in the restructured position (with or without reasonable accommodations) or whether she could realistically obtain the training she needed to be able to move into the restructured position. If not, the interactive discussion could shift to other positions in the organization that Ms. Kelley was able to perform.
• If all of these discussions were unfruitful, then the employer and Ms. Kelley could discuss the possibility of an amicable, no-fault exit with some severance pay in exchange for a full release of claims.

Even without the severance pay and release, complying with disability rights laws could have resulted in a win for the employer on the FMLA claims.

Something to think about.