Employers Can Terminate Employees Without Violating the FMLA

The Honorable Henry E. Hudson sitting in the Eastern District of Virginia, Richmond Division, granted summary judgment to an employer on claims under the Family Medical Leave Act and Title VII in Bullock v. Kraft Foods, Inc., 2011 U.S. Dist. LEXIS 134481 (November 22, 2011). With respect to the FMLA, the former employee brought claims of FMLA interference and FMLA retaliation.  An employer violates the FMLA if the employer interfered with, restrained or denied an employee from her exercise of FMLA rights such that a violation prejudiced the employee. In addition, an employer violates the FMLA if that employer uses the taking of FMLA leave as a negative factor in employment action such as hiring, promotions, or disciplinary action.   

The employee suffered from diabetes, hypertension, and foot problems. She took repeated FMLA leaves from 2007 until her termination in 2010. Pursuant to an exception in its Attendance Program, Kraft provided the former employee with a number of approved leave periods. The employee’s physician certified that the employee was not able to work “more than 8 hours a day 5 days a week” and indicated that the employee “will need to come in for frequent office visits.”  After using her full 12 weeks of unpaid FMLA qualifying leave in 2010, the employee continued to be absent from work for full days. 

Judge Hudson relied heavily on the employer required physician’s certification in finding that Kraft had not violated the FMLA. Judge Hudson ruled that even if a company misapplied its own policies, that misapplication of policy does not create a violation of the FMLA. In addition, Judge Hudson found that the employer does not act unlawfully by disciplining an employee for taking more than the 12 weeks of FMLA guaranteed leave. 

The employee in this case did not request an unpaid leave as an accommodation under the Americans with Disabilities Act (ADA) or make a claim under the ADA for discriminatory termination. The Equal Employment Opportunity Commission has repeatedly reminded employers that unpaid leave is a form of accommodation under the ADA.  When administering any FMLA leave, employers should require medical certifications and consider whether the FMLA qualifying reason also constitutes a disability. If the employee is protected under the ADA, employers must analyze whether unpaid leave is reasonable in the context of the employer’s business and the employee’s duties. For more information about the interplay of the FMLA and ADA, please contact Betsy Davis at 804-697-2035. 

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.