United States: Third Circuit Sets Standard For Return To Work Under The Family And Medical Leave Act

On August 27, 2014, the U.S. Court of Appeals for the Third Circuit issued an opinion in Budhun v. Reading Hospital and Medical Center reversing the U.S. District Court for the Eastern District of Pennsylvania, which granted summary judgment in favor of defendant Reading Hospital and Medical Center ("Reading Hospital") on its former employee's interference and retaliation claims under the Family and Medical Leave Act (FMLA). In doing so, the Third Circuit set the standard an employer is required to meet with respect to an employee's request to return to work following an FMLA-protected leave of absence.

Plaintiff Vanessa Budhun ("Budhun") was hired by Reading Hospital as a credentialing assistant, a position that required her to be typing approximately 60 percent of the time. The issue in the case arose when Budhun broke a bone in her hand, thus restricting the full use of her hands and fingers for typing.

On August 2, 2010, Budhun reported to work with a splint on her hand. Shortly thereafter, a human resources representative advised her that her injury prevented her from working full duty and provided her with FMLA leave paperwork. Budhun received medical attention and, by email dated August 12, 2010, submitted a portion of her completed leave of absence paperwork and a note from her doctor informing Reading Hospital that she could return to work on August 16, 2010 with no restrictions.

On August 16, 2010, Budhun returned to work. She emailed human resources to submit the balance of her FMLA leave paperwork; advised that FMLA leave certification from her physician was forthcoming; authorized Reading Hospital to contact her medical providers directly; and advised that she was working with a splint on her hand and could type, albeit a bit slower than she had before her injury. Human resources responded to Budhun's email advising that if she was unable to type at full speed, she was not considered full duty and would need to obtain a doctor's note to remain out of work until she was restored to full speed.

Budhun resumed her leave of absence, and her physician advised Reading Hospital that she would be out on leave through November 9, 2010. Reading Hospital approved her FMLA through September 23, 2010 (the date at which her 12 weeks of allotted FMLA leave was exhausted) and approved non-FMLA leave through November 9, 2010. In a September 15, 2010, meeting, however, various representatives of Reading Hospital met to discuss replacing Budhun if she was unable to return by the end of the 12-week FMLA period. On September 25, 2010, following the expiration of her leave of absence, Reading Hospital replaced Budhun.

Plaintiff's FMLA Interference Claim Survived Summary Judgment Because the Defendant Did Not Provide Plaintiff or Her Physician with a List of Essential Job Functions to Evaluate in the Fitness-for-Duty Certification

Budhun sued Reading Hospital, alleging interference and retaliation claims under the FMLA. The district court granted the employer's motion for summary judgment on both claims. With regard to the interference claim, the Third Circuit held that the district court erred in granting the employer summary judgment, as Budhun had adduced sufficient evidence that she invoked her right to return to work on August 16, 2010, and Reading Hospital interfered with that exercise. In particular, the court instructed that "[a]n employer may require that th[e return to work] certification address the employee's ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave." 2014 U.S. Dist. LEXIS 16541, at *15–16 [citing 29 C.F.R. § 825.312(b)]. In this case, because Reading Hospital did not provide her with such a list, Budhun's fitness-for-duty certification was based on the description she supplied to her physician and her physician found her able to work without restrictions. Rather than contact her physician, as Budhun authorized it to do, Reading Hospital concluded that she was not ready to return without restrictions since she could not type using all of her fingers. This, the court held, was sufficient to allow a reasonable jury to conclude that Budhun attempted to invoke her right to return to work, and Reading Hospital interfered with that right.

Reading Hospital further maintained that Budhun was unable to perform the essential functions of her position, and it therefore did not violate the FMLA because it had no duty to restore her to her position under the circumstances. Again, the court found that Reading Hospital was not entitled to summary judgment on this point because it did not provide Budhun's physician with a list of essential functions to consider in certifying her fitness for duty. Moreover, as Budhun testified that she was able to complete her essential functions in a timely manner, though slower than her typical pace, Reading Hospital had not proven that she was unable to perform the essential functions of the position.

Finally, the court rejected Reading Hospital's argument that it could not have interfered with Budhun's right to return to work on August 16, 2010, because it did not approve her absence as an FMLA-covered leave of absence until August 17, 2010. The court summarily dismissed this argument on two grounds: (1) Reading Hospital backdated Budhun's leave of absence as beginning on August 2, 2010; and (2) based on Edrman v. Nationwide Insurance Company, 582 F.3d 500 (3d Cir. 2009), in which the court held that "it is the time that an employee invokes rights under the FMLA that matters, not when his or her employer determines whether the employee's leave is covered by the FMLA." 2014 U.S. Dist. LEXIS 16541, at *23.

Plaintiff's FMLA Retaliation Claim Survived Summary Judgment Because the Defendant Devised a Plan to Replace Her at the Cessation of the 12-Week FMLA Period and Implemented That Plan Two Days After Her Leave Exhausted, Meeting the Adverse Employment Action and Causation Prongs of the Prima Facie Case

The Third Circuit also reversed the district court's entry of summary judgment on Budhun's FMLA retaliation claim. The district court agreed with Reading Hospital that Budhun could not establish the second and third prongs of a prima facie case of retaliation, namely: Her separation from Reading Hospital was not an adverse action because she was unable to return to work at the conclusion of her FMLA leave, and she could not establish any temporal nexus between her termination and her FMLA leave because she was officially terminated two months after her FMLA leave expired.

The Third Circuit found sufficient evidence from which a reasonable jury could conclude that Budhun suffered an adverse employment action. Reading Hospital permanently replaced her at the conclusion of her FMLA leave; advised her that she was no longer free to return to her previous job; demanded that she turn in her badge and keys; and told her to pick up her personal belongings, which another employee had packed into a box. She was not offered another position at the hospital, and she was ineligible to transfer to another position. This, the court held "certainly altered her 'privileges of employment,' as she could no longer even enter her place of work." Id. at *28–29. The court emphasized that it has "never required formal termination to be a necessary element of [a retaliation] action." Id. at *29.

With respect to the third prong, the causation prong, the court held that sufficient evidence of suggestive temporal proximity existed. Rather than focusing on the dates on which her FMLA leave was exhausted and she was terminated, the court focused on the management meeting of September 15, 2010, where the decision was made to permanently replace her as of the conclusion of her FMLA leave and the implementation of that decision just two days after her FMLA leave expired.

Plaintiff's ADA "Regarded As" Disabled Claim Did Not Survive Summary Judgment Because Her Impairment Was Transitory and Minor

Finally, the court affirmed the district court's denial of Budhun's request for leave to amend the complaint to add a "regarded as" disabled claim under the Americans with Disabilities Act (ADA). The court agreed that Budhun's injury was transitory and minor, which under the statute, "curtails an individual's ability to state a 'regarded as' claim." Id. at *33 [citing 42 U.S.C. § 12102(3)(B)].

Lessons for Employers to Consider

Following Budhun v. Reading Hospital, employers should consider reviewing their job descriptions to ensure that they are fully developed and contain detail with respect to each essential function. In addition, with respect to any employee who is approved for an FMLA-covered leave of absence, employers should "provide [] a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave," and may "require that th[e return to work] certification address the employee's ability to perform the essential functions of her job." 2014 U.S. Dist. LEXIS 16541, at *15–16. In addition, employers may want to provide a second copy of the essential functions to the employee or the employee's physician (if such contact is authorized by the employee) when the employee notifies the employer of his or her intention to return to work—thereby ensuring that the physician will address the employee's ability to perform each essential functions of the position in the fitness-for-duty certification.

If you have questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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