Can You Hear Me Now? – Not Returning Employee Calls May Be FMLA Retaliation


by Ruth Horvatich

Horvatich, Ruth
rhorvatich@mcgrathnorth.com
(402) 341-3070

Can an employer’s failure to return an employee’s telephone calls while she is on FMLA leave be evidence of retaliation against the employee? “Yes” – according to a federal district court in Pennsylvania.

In Hofferica v. St. Mary Medical Center, the plaintiff was a registered nurse who was approved for intermittent Family and Medical Leave Act (FMLA) leave after she was diagnosed with Ménière’s disease, which involves hearing loss, tinnitus, and vertigo. The nurse was approved for leave and commenced it in September 2008, after she learned she had to undergo a series of surgeries. During her leave, the nurse or her husband called her employer to provide updates each week of her progress and the anticipated date that she would return to work. The nurse claimed that the employer “often failed” to return these calls.

The nurse alleged that on November 4, 2008, she called her employer to explain that her doctor might extend the anticipated return date beyond November 4, but that call was not returned. The nurse then received a note from her doctor approving a November 13 return to work. She called her employer on November 6 to inform the employer of the note and to request a short extension of her leave to accommodate her disability, but once again this call was not returned. On November 12, the nurse received a letter that was dated November 7, which informed her that she had been terminated because her medical leave had expired. The nurse then sued her employer for FMLA retaliation, among other things.

The court refused to dismiss the nurse’s retaliation claim and found that she stated a claim for FMLA retaliation. Employers are prohibited from retaliating against employees because of FMLA leave. To prove retaliation, an employee must show that there is a causal connection between her FMLA leave and her termination. The court found that the employer’s failure to return phone calls was evidence that suggested “an antagonistic attitude toward the employee, particularly where – as here – such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee.” The court concluded that this pattern of antagonism provides evidence of a causal connection between the nurse’s FMLA leave and her termination, and thus that the nurse had stated a claim for FMLA retaliation.

This is a serious reminder that terminating an employee shortly after they exhaust FMLA leave can be tricky business. Here are some things to keep in mind:

  1. Periodic Reports During FMLA Leave.  An employer may require periodic reports on an employee’s status during FMLA leave and may require periodic reports on the employee’s intent to return to work after the leave.
  2. FMLA Retaliation.  Employers are prohibited from discriminating or retaliating against an employee for having exercised or attempted to exercise FMLA rights.
  3. Job Restoration.  Upon return from FMLA leave, an employee must be restored to her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. However, employees who are unable to return to work and have exhausted their FMLA leave no longer have the protections of leave or job restoration under the FMLA.
  4. The FMLA and ADA May Apply Simultaneously.  An employer may still have an obligation to provide an employee with additional time off under the Americans with Disabilities Act (ADA) to accommodate a disabled employee that has exhausted her FMLA leave.
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