Kienan D. Christianson, Maggie Platzer, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Kienan D. Christianson
When an employer is deciding whether to terminate an employee for poor performance, can it use the fact that she exercised her rights under the Family and Medical Leave Act (FMLA) against her? The U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) answered that question in a recent case, emphasizing that employers must be vigilant about allowing employees to exercise their rights under the FMLA without retaliation or interference.
The FMLA provides broad protections for employees who need to take time away from work to deal with their own or their family members’ serious health conditions. The purpose of the Act is “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.”
The law “entitle[s] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” Among other protections, the FMLA provides that “any eligible employee” is entitled to return to “an equivalent position with equivalent benefits, pay, and other . . . employment [conditions].”
If an employer violates the FMLA, either by interfering with an employee’s rights under the Act or retaliating against her for taking leave, the employee has “a private right of action to seek both equitable relief and money damages against the employer (including a public agency) in any Federal or State court of competent jurisdiction.” How can an employee prove she was subjected to an adverse employment action because she exercised her FMLA rights? According to the 2nd Circuit, she need only show that her use of FMLA leave was a motivating factor in the adverse decision. That substantially lowers employees’ burden of proof, making it easier to establish FMLA violations predicated on interference or retaliation.
The case before the 2nd Circuit centered on a dispute between a nonprofit and a former employee over the reason for her termination. START Treatment and Recovery Centers provides treatment services to patients addicted to narcotics. Cassandra Woods worked as a substance abuse counselor at START for 10 years before her employment was terminated in mid-2012. The reason for her termination was the critical issue in the case. According to START, Woods was terminated because of her poor performance. Woods believed her termination was actually a pretext (excuse) to retaliate for her use of FMLA leave.
As a substance abuse counselor, Woods was required to meet with and counsel patients. In 2011, START implemented a new state-mandated patient note system. Initially, Woods did quite well implementing the new note system, and her 2010 and 2011 performance reviews were generally satisfactory. However, in March 2011, she began falling behind and failed to satisfy START’s job expectations.
START took a series of corrective actions to help Woods meet the goals necessary to succeed as a substance abuse counselor. Although she temporarily met the required outcomes and received a pay raise, she continued to miss her goals and was eventually placed on probation. While she was on probation, she received a number of warnings indicating that she had to meet her performance targets, but she still lagged behind many of her colleagues at the end of her probation. As a result, in May 2012, she was terminated for “fail[ing] to maintain up-to-date patient notes and [an] ‘on-going failure to perform [her] job duties.’”
According to Woods, however, her termination was predicated on more nefarious grounds. Woods suffers from severe anemia and other conditions, and on several occasions, she requested medical leave under the FMLA. She argued that her FMLA leave was the real reason for her termination.
Woods claimed that in early 2011, she approached an HR employee and requested FMLA leave. But shortly after making the request, she canceled it, citing a discussion she had with a coworker who told her to withdraw her request for leave. In the summer of 2011, Woods was hospitalized for six days as a result of her anemia. At the time, START didn’t provide her a full explanation of her FMLA benefits, although it acknowledged that her hospitalization was covered under the Act.
Later in 2011, while she was on probation, Woods again attempted to take FMLA leave, but a START employee allegedly informed her that she wasn’t eligible for leave while she was on probation. Although she needed to be hospitalized for her anemia, she declined a stay at the hospital, fearing she would lose her job if she missed work.
In 2012, shortly before she was terminated, Woods was hospitalized for another seven days. START acknowledged that this hospitalization was also protected under the FMLA. Soon after she returned to work, START decided to fire her, and her termination took place a week later.
As a result of her termination, Woods sued START, arguing it either interfered with her FMLA rights or retaliated against her for exercising her rights. After a trial, the jury returned a verdict in favor of START. Woods appealed, and the 2nd Circuit overturned the jury verdict and sent the matter back to the trial court for a new trial.
Decision by the 2nd Circuit
A number of issues were presented on appeal, but the issue of particular importance for employers was the burden of proof for an FMLA retaliation or interference claim an employee must satisfy to establish the necessary connection between certain adverse actions and her protected rights. START argued that Woods had to prove that her exercise of FMLA rights was the “butfor” cause of her termination. Woods countered that she only needed to show that her FMLA leave was used as a “negative factor” in START’s decision to fire her. The 2nd Circuit agreed with Woods.
In reaching that conclusion, the 2nd Circuit cited a U.S. Department of Labor (DOL) regulation, 29 C.F.R. § 825.220(c), which provides:
The [FMLA’s] prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no[-]fault attendance policies.
The court noted that it must defer to properly promulgated agency rules. It then held that “given the sweeping scope of [the FMLA’s] prohibition . . . and the absence of any indication of a causation standard, the [DOL] reasonably construed [the FMLA] to prohibit using the exercise of FMLA rights at all in making employment decisions.” The court concluded that the correct standard for FMLA retaliation claims is whether the employer used the employee’s exercise of her FMLA rights as a “negative factor” in making the adverse decision. Woods v. START Treatment & Recovery Ctrs., Inc., ___ F.3d ___, 2017 WL 3044628 (2d Cir., Jul. 19, 2017).
Significance for employers
There are a couple of important takeaways from the 2nd Circuit’s decision in this case. First, you need to be judicious when responding to employees’ requests for FMLA leave. You cannot use an employee’s performance issues as a pretext for denying her rights or benefits she’s entitled to under the FMLA. Second, if you are contemplating an adverse action against a poorly performing employee, you must ensure that you don’t consider her use of FMLA leave when you make the adverse decision.
For example, if the decision to terminate an employee is a close call and you consider the fact that she took FMLA leave a negative factor that weighs against her, you risk liability for retaliation or interference with her FMLA rights if you terminate her. Careful documentation of the reasons for your termination decision, accompanied by an acknowledgment that the decision was made irrespective of the employee’s use of FMLA leave, can protect your organization against a future claim that you violated her FMLA rights.