FMLA does not protect employees who fail to certify absences

Treatment for substance abuse is a serious health condition covered by the FMLA. Unexcused absences from work are not. The distinction between these two categories made all the difference for Krzysztof Chalimoniuk, who was terminated by Interstate Brands Corporation for excessive absences. In Chalimoniuk v. Interstate Brands Corporation, decided last week, the 7th Circuit upheld the termination and affirmed the trial court's dismissal of Chalimoniuk's FMLA claim.

Chalimoniuk had been battling alcohol addiction for 15 years. On Friday, July 28, he stopped on his way home from work, bought a large amount of alcohol, and over the next three days drank so much he lost his memory of that weekend. He was scheduled to work at IBC the following Monday (July 31), Wednesday (August 2), and Thursday (August 3). On Saturday, July 29, in the midst of his binge, his wife realized he had relapsed and called Fairbanks Hospital to see if she could bring her husband in for treatment. On Tuesday, August 1, Chalimoniuk called his physician's office but it was closed that day. On Wednesday, August 2, he called his doctor's office again, this time speaking to a nurse or receptionist who spoke to the doctor and referred Chalimoniuk to Fairbanks Hospital. On that same day, Chalimoniuk called Fairbanks Hospital and his insurance company to arrange his admission to the hospital. Because of a delay in obtaining insurance approval, Chalimoniuk was not admitted until August 4. He remained in the hospital until August 10. The FMLA certification completed by his doctor stated that he was in treatment from "7/29 - 8/11. Return 8/14."

Chalimoniuk's absences on July 31, August 2, and August 3 put him over the limit under IBC's attendance policy, unless they were covered by the FMLA. Because he did not start his inpatient treatment until August 4, IBC did not grant Chalimoniuk FMLA leave for his three missed work days, and terminated his employment under its attendance policy.

The regulations to the FMLA provide that substance abuse is a serious health condition only if the employee is receiving treatment, and not merely because of the employee's use of the substance:

Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. 29 C.F.R. 825.114(d).

Thus, under this regulation, Chalimoniuk was entitled to FMLA leave only for treatment for substance abuse. Because he was not in treatment until August 4, his three prior absences were not covered by the FMLA.

Chalimoniuk claimed that his medical certification was incomplete or invalid, creating a duty for IBC to alert him to the deficiency and allow him an opportunity to cure it. The FMLA regulations do impose such a duty on employers. "The employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency." 29 C.F.R. 825.305(d). IBC did not deny the FMLA leave not because the Certification was incomplete but because they believed it inaccurately overstated the time period that Chalimoniuk was in treatment. Moreover, even if the Certification was incomplete, it would have been impossible for Chalimoniuk to cure the deficiencies, because even he admitted that his treatment did not begin until August 4.

It would be an understatement to say that Chalimoniuk presented an at-risk termination, and it may strike some as unfair that IBC was allowed to terminate him purely because of an administrative delay in his being admitted for treatment. Chalimoniuk and his wife appear to have done everything right -- she called the hospital as soon as she found him drunk, they promptly tried to reach his doctor but could not, and got him admitted to hospital as quickly as their insurer would allow. Nevertheless, the FMLA does not protect him because his treatment did not begin until his actual admission for treatment. I suppose one could rationalize a result in which his treatment would be deemed to have started on the 29th when Chalimoniuk's wife made the call to the hospital, but that would strain the reality of his actual treatment. After all, even Chalimoniuk freely admitted that despite the dates on the Certification, he did not start treatment until he was admitted on August 4.

Most often, FMLA cases teach employers the importance of making sure that all their i's are dotted and t's are crossed. This case illustrates that the same is equally as important for employees, and that employers should consistently apply the FMLA's requirements to employees have failed to properly certify their absences.

Some lessons in handling departing employees and their files

ESPN is reporting that football program files have gone missing from the University of West Virginia office of former coach Rich Rodriguez, who left West Virginia for Michigan. From espn.com:

West Virginia University said Tuesday it will investigate the disappearance of player and football program files found to be missing from the former office of ex-Mountaineers coach Rich Rodriguez.

West Virginia University said Tuesday it will investigate the disappearance of player and football program files found to be missing from the former office of ex-Mountaineers coach Rich Rodriguez.

Paperwork detailing every player on West Virginia's roster, as well as the program's activities over the past seven years, went missing between Rodriguez's resignation as coach to take over at Michigan and the team's return from the Fiesta Bowl, the Charleston (W.Va.) Gazette reported....

After returning to work about a week ago, the staff at WVU's Puskar Center found that most of the files that had been stored in Rodriguez's office, as well as the players' strength and conditioning files in the weight room, were gone, the Gazette reported.

"It's unbelievable. Everything is gone, like it never existed," a source within the athletic department, who spoke on the condition of anonymity, told the Gazette. "Good, bad or indifferent, we don't have a record of anything that has happened." ...

According to the source, the missing files include all of the players' personal files, which encompass contact information, scholarship money awarded, class attendance records and personal conduct records, the Gazette reported....

According to the report, multiple sources said several people in the Puskar Center reported seeing Rodriguez and at least one of his assistants, video coordinator Dusty Rutledge, in Rodriguez's private office shredding paperwork on Dec. 18 -- the day he returned from Ann Arbor after being named Michigan's new head coach. Those who say they witnessed the action said they either paid it no mind or did not know what was being destroyed, according to the report....

West Virginia and Rodriguez are in the midst of a messy legal battle over his departure from Morgantown. The university is trying to recover $4 million from Rodriguez for leaving with six years remaining on his contract. Rodriguez, in turn, said West Virginia breached the contract by not fulfilling all of its terms of the deal.

If Coach Rodriguez took the files, I certainly hope that his attorney is advising him to return them. I couldn't imagine that Coach would try to leverage these valuable documents into a settlement of his other legal issues with the university.

Intrigue aside, Rich Rodriguez's plight is a good learning exercise for employers and employees. Unless there is an agreement that states otherwise, what an employee creates during his or her employment is the property of the employer. The employee is working for the benefit of the employer, and is being paid for it. Accordingly, the employer, and not the employee, owns the files and documents. Because it is the employer's property, the employee has no right to take the property with him or her at the end of employment. These issues are the same whether we are talking about paper or electronic files.

Some take away points for everyone:

• Make sure expectations are clear on the way in the door - handbooks, policy manuals, and employment agreements should clearly state that everything that is created during employment belongs to the company, and that it is expected to be left with the company at the end of employment.
• Supervisors and managers need to be trained so that they do not make any statements contradictory to the policy upon which an employee could claim reliance.
• As best as possible, monitor what employees take out of the company during their employment. Few jobs today are 9 - 5. More and more employees take work home, and some even telecommute. It becomes very difficult to keep tabs on where stuff is, and the more stuff taken out of the office or downloaded, the harder it will be to have it returned if an employee leaves. The good thing about e-mail and portable media is that at least they generally leave a trace that something was taken.
• Reinforce the policy during an exit interview by reminding the employee of the expectation that nothing will leave the company with him or her, and that everything must be returned immediately.
• When all else fails, a letter from a lawyer to a former employee and the new employer goes a long way to getting the documents returned.

6th Circuit affirms maternal profiling verdict

I've been writing lately about maternal profiling, which is employment discrimination against a woman who has, or will have, children. Last week, the 6th Circuit, in Lulaj v. The Wackenhut Corporation, provides us a good example of this type of stereotyping in action.

Lisa Lulaj worked at Chrysler as a fire security officer, first as a Chrysler employee and then as an employee of Wackenhut Corporation after Chrysler outsourced its security operations. Lulaj accepted the transition to Wackenhut solely because she was promised a promotion to a supervisor position. Shortly after the transition, Lulaj filled out forms notifying Wackenhut that she was pregnant and would need a larger uniform. Within a month, her immediate supervisor offered her a lesser promotion than she was originally promised, looking at her stomach and telling her, "You should consider this position considering your position." Within a month, Lulaj went out on maternity leave. When Wackenhut refused to promote her to the originally promised supervisor position at the end of her leave, she decided not to return to work. She sued to pregnancy discrimination under Michigan law, and the jury awarded her a total of $200,000, to which the judge added $49,500 in attorney's fees. The trial judge also took away $142,168 in lost wages because the jury found that Lulaj had voluntarily quit and had not been constructively discharged.

The 6th Circuit rejected Wackenhut's argument that there was no nexus between Lulaj's pregnancy and the promotion decision. The the contrary, the court considered three pieces of evidence critical to its decision that Lulaj was discriminated against:

1. Company managers were aware of her pregnancy long before she officially informed them.
2. The timing of the events suggests discrimination.
3. The way her superior glanced at her stomach suggested that pregnancy was a factor in denying the promotion.

This case is a good example of how maternal profiling can cause a bad result for an employer. At the same time, however, it sets a potentially dangerous precedent by allowing a discrimination claim to stand based in large part on subjective interpretations of glances and stares.

Congress expected to revisit expanded FMLA leave for military families

This morning's New York Times is reporting that Congress is expected to quickly revisit the National Defense Authorization Act that President Bush vetoed at the end of last year. The House and Senate overwhelmingly passed the legislation, which would, among many other things, amend the FMLA and provide up to 6 months of leave to family members (i.e., spouse, son, daughter, or parent) of combat-injured service members to care for their loved ones. The President vetoed it out of a concern that a provision in the bill could lead to legal claims by victims of Saddam Hussein's government against Iraqi assets held in U.S. banks. The Times quotes Congressional aides, who say that Congress will likely send the bill back to the Armed Services Committee, where the disputed provision can quickly be corrected. Congress hopes to have the measure brought back for a final vote by the end of the week. These issues should not affect the FMLA amendments in the bill, and with the amendments, President Bush is expected to sign it.

Supreme Court dismisses Huber v. Wal-Mart from its docket

After more than a decade practicing, it still amazes me how fluid the law actually is. Rarely anything is black or white, and most issues exist in uncertain shades of gray. Such will continue to be the case with Huber v. Wal-Mart. Recall that only a month ago, the Supreme Court decided to hear the issue of whether an employer that has an established policy to fill vacant job positions with the most qualified applicant is nevertheless required to reassign a qualified disabled employee to a vacant position even if that disabled employee is not the most qualified person for the job. According to SCOTUSblog, the Supreme Court has dismissed the case as it has settled.

With no forthcoming guidance from the Supreme Court on this issue, Ohio employers will now have to choose between the 8th Circuit's view in the Huber case (which allowed Wal-Mart to hire to most qualified person and deny the open position to a less qualified disabled employee) and the opposing view of courts such as the 10th Circuit (which require employers to automatically award an open position to a qualified disabled employee if even better qualified applicant are available and despite an policy to hire the best person for the job).

My opinion remains unchanged from when I first reported on this issue. When you don't hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA if the court agrees with the 10th Circuit's rationale and rejects the 8th Circuit's Huber decision.

Will the Supreme Court review FMLA waivers?

SCOTUS Blog is reporting that the Supreme Court has asked the U.S. Solicitor General for the government's position on whether workers may settle claims under the Family and Medical Leave Act without approval by the Department of Labor or a court. By all appearances, the Court is seriously considering whether to grant cert. in Taylor v. Progress Energy, and resolve the current conflict between the 4th and 5th circuit on this issue. For my thoughts on this issue, click over to FMLA waivers pose a potential trap.

The Golden Rule of employment relations

John Phillips at The Word on Employment Law has a great post up this morning on the crucial role fairness plays in employment relations. John opines (and I wholeheartedly agree) that juries in employment lawsuits often discuss "fairness." In other words, all law aside, did the employer treat the employee fairly? John focuses on 5 key areas of fairness that employers must pass for any employment decision to survive scrutiny:

• Appearance: does an employment action appear fair to an outside observer?
• Counseling: except in the most egregious of cases, was the employee told of a deficiency and given a chance to correct it?
• Consistency: are similar disciplinary problems handled similarly and to the same degree?
• Documentation: can you point to a performance review, written warning, a note in a personnel file, or some other contemporaneous piece of paper that supports the personnel decision?
• Rationale: was the employee given a reason for the decision, and was it the real reason?

These 5 areas of fairness can be succinctly summed up in what I call The Golden Rule of Employment Law. If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer's favor. I've said this before, but it bears repeating. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to find in the employee's favor.