Firefighter Training, Firefighting, Legal

Legal Matters: FMLA Pitfalls for the Fire Service

By John K. Murphy

There are many firefighters who are provided with the opportunity to use Family Medical Leave under the Family Medical Leave Act (FMLA, http://www.dol.gov/whd/fmla/), but many organizations seem to have difficulty in the processing and administration of a FMLA request and may find themselves on the wrong end of a claim costing millions of dollars.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for:

  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;”

or 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

This case law example involved a president of a security company suffering from depression and anxiety. Despite treatment over several years, his condition had not improved. Based on his doctor’s advice, the president asked his CEO for a leave of absence. At first, the president simply told the CEO that he had been advised by his medical health professional to take some vacation. In a follow-up conversation, however, the president bluntly told his CEO that he had been diagnosed with depression and that he needed time off to deal with it. The CEO’s response? “…We’ve ‘had a great run together,’ but it is ‘time to part ways.'” Immediately thereafter, the employee was terminated. The FMLA suit quickly followed, and the employee prevailed at a jury trial on his FMLA interference and retaliation claims. In the case Hurley v. Kent of Naples (Case Nos. 2:10-cv-334-FtM-29SPC, 2:10-cv-752-FtM-29DNF), the essential element of the case is the fact the manager did not recognize or refused to recognize a leave request covered by the FMLA. The facts of this case are well founded, with the medical justification from the employee’s physicians citing the need to time off under FMLA and the refusal from the CEO. The employee made a request to use his accrued vacation time for therapy AND would make a reasonable accommodation with the employer if his time off interfered with the business needs of the company. The request for vacation time was refused by the CEO. The employee was terminated shortly after he made the request. The employee also completed an FMLA request form authenticated by his physician as having a “serious health condition” and sent it to the CEO. The employee, now the plaintiff, filed a two-count complaint. The first complaint alleges that defendants interfered with plaintiff’s FMLA rights and the second complaint alleges the employer discriminated against the plaintiff for exercising his right to leave pursuant to FMLA. In the court analysis, the FMLA provides that “any employer” who interferes with or denies any rights provided to an employee under the Act is liable for damages under 29 U.S.C. § 2617(a). The court also opined FMLA provides eligible employees with up to 12 weeks of unpaid leave annually if a serious health condition makes the employee unable to perform the functions of his or her position as an employee.(See 29 U.S.C. § 2612(a)(1)(D)). FMLA also creates a private right of action for equitable relief and money damages for employer violations. (See 29 U.S.C. §§ 2615(a)(1), 2617(a)).

The court also stated, “FMLA creates two types of claims: interference claims, in which an employee asserts that his or her employer denied or otherwise interfered with substantive rights under the FMLA and retaliation claims, in which an employee asserts that the employer discriminated against him because he or she engaged in activity protected by the FMLA.” Under an interference claim, the plaintiff needs, “To state a claim of interference with a [FMLA] substantive right, an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied.” Under the retaliation claim, the employee needs, “To establish a prima facie case of retaliation whereas the plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he experienced an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse action. The Court noted the employee was terminated–an adverse employment action. With regards to pretext, it is undisputed that the employee was terminated within hours of submitting his leave request. “Close temporal proximity between protected conduct and an adverse employment action is generally sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.

Their damages paid by the employer to the employee was $1.26 million. This amount includes back pay, front pay, liquidated damages (a form of “punitive damages”), attorney’s fees, and interest.

What is the take away from this case for the fire service? The laws involving employee’s rights under FMLA are either misconstrued or actually ignored. As employers, we need to do a much better job of training our leaders and supervisors, including the fire chief and human resources (HR). Many times they simply are not identifying when a request for a leave of absence might be protected by the FMLA.

Court cases like the one above prove that we need to do better. Lieutenants, captains, and battalion chiefs do not always recognize when a firefighter’s absence could and should be covered by the FMLA, and they are not communicating this information to those responsible for leave management. Their ignorance, in turn, is creating tremendous risk for the employer. It is critical that your front-line supervisors and HR identify an employee’s protections afforded to them and other employees and the need for medical leave under FMLA because:

1) they are responsible for communicating to HRthat the employee may need FMLA leave and

2) they are your eyes and ears at an early stage of the FMLA leave request process, where FMLA abuse might be an issue.

With the new health care legislation changing the way the fire service will be managing the health care of your firefighters and employees, it is time and money well spent training your staff on the nuances of FMLA and be able to define a serious health condition and provide your front-line supervisors with a set of questions to ask a firefighter requesting leave that may be covered by FMLA, and ultimately manage effectively those employees with a medical condition requiring time off under FMLA. Complicated? Yes it is, but with a little training, the fire departments will avoid the pitfalls of improper administration of FMLA and possible large monetary awards to your employees.

Legal matters for firefighters: John K. MurphyJOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney; and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author to Fire Engineering and a podcast host.

 

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