When a manager learns that one of his employees is in the hospital for several days, that’s almost always enough information for the employer to have an inkling that the employee may need FMLA leave.
But one employer didn’t think so. And the penalty for its mistake was costly. Let me explain.
Grace worked for the Center for Human Development (CHD). On a moment’s notice, she became hospitalized due to a mental health condition. Upon her admission to the hospital, Grace asked her son, Jim, to call CHD to report that she was in the hospital and unable to report to work.
Being the good son he was, Jim called CHD that same day.
And the next day.
And the day after that.
Not only did Jim talk to her mom’s direct supervisor . . . but his boss . . . and the boss’s boss. Each time, he made clear that his mom was ill, in the hospital and could not come to work. After a few days, Jim shared that his mom could speak, though she was “unintelligible.”
When all was said and done, Jim had called in to report and provide updates on his mom no fewer than four times over the course of one week. At the same time, however, Candy, a supervisor who had taken one of his calls, got angry with Jim, telling him that it was “not acceptable for him to call CHD instead of his mother” and told him “not to call again.” Despite her admonition, Candy asked Jim no questions about Grace’s condition.
The next day, Candy informed CHD’s vice president of Human Resources, Carol, that Grace was hospitalized and unable to work. A few days later, Candy reported to Carol that Grace was a “no call/no show” when she failed to personally notify CHD of her continued absences. Carol asked Candy no questions, not even something like, “Ummm, Candy, isn’t that the employee you mentioned was in the freaking hospital?” Nope. None of these questions apparently came to mind.
Despite knowing that Grace had been hospitalized, Carol [mind you, she’s the VP of HR, the grand poobah of all things HR] prepared a draft termination letter for signature by one of CHD’s executives. Notably, neither Candy nor Carol told the executive that Grace had been in the hospitalized, and that she very well still could be there.
As the story goes, when Grace came back a few days later looking for her job and with her doctor’s medical certification in hand, CHD told Grace that her employment had been terminated because she abandoned her job.
Whack! That’s the sound of a swift smack down the jury gave the employer at trial. No doubt, the jury made quick work of Grace’s FMLA claims, finding that the employer grossly violated the FMLA when it refused to allow Grace’s son to report her absences on her behalf and then terminated Grace immediately after her time in the hospital and without inquiring further. It awarded her nearly $150,000 in back pay and benefits, plus her attorney’s fees. Boadi v. Center for Human Development (pdf)
The loss itself was only part of it. Because the court found that the employer willfully violated the FMLA, it awarded Grace liquidated damages, which doubled Grace’s back pay award. So, Grace gets another $150K.
Insights for Employers
There are plenty of golden nuggets in today’s lesson:
1. Hey Employers, Your Managers Are Killing You. And there is one, simply reason why this is happening: You are not training your managers on their responsibilities under the FMLA.
I’ve never seen a case like this one call out — indeed, practically beg — employers to train managers on the FMLA. Interestingly, every time the court introduced a new manager in its sad story about Grace, it specifically commented that the manager was “not trained on the FMLA.” The court then used the lack of FMLA training to award double damages to the plaintiff. Why? The court put it simply:
The fact that [the decisionmaker and other managers] had little FMLA training is further evidence of CHD’s lack of good faith.
Heck, even the VP of HR was in clear need of FMLA training, since: 1) she was aware Grace had been in the hospital; and 2) still chose not to inquire further to determine whether Grace’s inpatient stay was the reason for her extended absence.
Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.
2. Family members can report employee absences in limited situations like this one. When an employee’s family member reports that your employee is in the hospital and “unintelligible” when communicating, first have some empathy. Then, recognize this situation as an unusual circumstance because the employee’s inpatient stay at the hospital was the reason they couldn’t reach you. This comes right out of the regulations at 29 CFR 825.303(a):
Notice may be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.
Of course, the employee is obligated to contact the employer when they are able to do so after the family member has provided notice. Here, Grace was hospitalized for an extended period of time due to a mental health condition. In these situations, it’s far better to exercise patience than to hit the termination button. Clearly, the jury thought so.
Also keep in mind: Where you have any doubt as to whether the FMLA may cover an absence, the regulations require the employer to inquire further to determine whether the FMLA covers the absence. Surely, this was the case here. The employer knew Grace had been hospitalized, so it can’t stick its head in the sand and presume that FMLA didn’t apply or that it had no obligation to ask some questions. Candy should have asked questions of the son, and Carol should have asked Candy just as many. If Candy didn’t know, she could have returned to the son and started over again until they were satisfied whether FMLA did or didn’t apply. [Ahem, it did. ]
3. Re-consider Your Termination Decision when You Realize You Have Fudged Up. The Court awarded double damages, in part, because the employer failed to reconsider its termination decision when the decisionmaker learned that Grace had been in the hospital, making it unlikely that she could have called in a timely manner from her hospital bed.
Sometimes, we simply have to swallow our pride and realize we made a mistake. Had the employer done so here, it would have drastically reduced its damages.
In fact, it likely would have avoided a lawsuit.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2016) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.