Thursday, January 7, 2010

A termination is not always a termination when the FMLA is involved

On December 5, 2002, James Randolph suffered a severe episode of depression, blacked out, and failed to report for work. Because December 5 was Randolph’s last day of probation for prior attendance violations, his employer terminated him. When Randolph awoke from his blackout, he discovered a voicemail message on his cell phone from his supervisor terminating him. With that discovery, Randolph had a break-down, abandoned his plans to call work to explain his absence, aborted a trip to his doctor, and drove to his mother’s house. It was his mother who, late that night, spoke to the same supervisor, stating that Randolph was having a nervous breakdown and suffering from a recurring condition that warranted medical leave. Randolph had a similar conversation the following day with the personnel department, but his employer refused to reverse its termination decision.

In Randolph v. Grange Mutual Casualty Co. (Franklin Cty. 12/22/09) [pdf], the court of appeals reversed the trial court dismissal of Randolph’s FMLA claim, and concluded that a jury issue existed on whether the company interfered with Randolph’s attempt to take unforeseeable FMLA leave on December 5. Under the FMLA, “[w]hen the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case.”

Grange argued that Randolph did not provide notice of his need for FMLA leave as soon as practicable on December 5, citing to the nearly 9-hour gap between when he awoke from his blackout and when his mother finally contacted his supervisor. The appellate court rejected that argument, concluding that it should be up to jury to conclude whether Randolph’s fragile emotional state excused him from not contacting his employer upon coming to. In other words, what is “as soon as practicable” is a fact question, not a legal question.

Employees’ medical issues should raise a bunch of flags for employers, who must proceed with caution whenever taking action against such an employee. As the Randolph case points out, this caution could even extend to rescinding a termination in the right circumstances.

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