Earlier this month, the U.S. Court of Appeals for the Third Circuit issued a decision which raises the bar for employers seeking to obtain summary judgment on claims raised under the Family and Medical Leave Act ("FMLA") for interference with protected rights and retaliation for taking FMLA leave.
In Lupyan v. Corinthian Colleges, Inc., the Court concluded that: (1) an employer's failure to provide notice to an employee that her leave would be characterized as leave under the FMLA could constitute interference with FMLA rights if the employee demonstrated that she was prejudiced by that action; and (2) the refusal to reinstate an employee may constitute retaliation, even when the employee is unable to return to work until after the expiration of the FMLA's 12 maximum week leave period.
The Lupyan plaintiff was an instructor at the defendant college. She requested a "personal leave" but submitted a Certification of Healthcare Provider (the USDOL form typically used to support a request for FMLA leave) indicating that she could not work due to medical reasons. The college's human resources department determined that plaintiff was eligible for leave under the FMLA, and she was instructed to fill out paperwork requesting an FMLA leave. While the plaintiff's rights under the Act were never discussed in the leave process, the employer contended that it sent plaintiff a letter advising that her absence had been designated as an FMLA leave. The plaintiff contended that she never received the letter. When plaintiff attempted to return to work after fourteen weeks of leave, she was told her employment had been terminated because she had not returned within twelve weeks and because enrollment had declined.
The Interference Claim
Plaintiff sued, alleging that the failure to inform her that her leave had been designated as an FMLA leave constituted an interference with her rights. She claimed to be unaware that she had to return within twelve weeks, and argued that she would have structured her leave differently had she received proper notice.
The employer contended that plaintiff had notice of her FMLA rights through the employee handbook which contained a general summary of the law. The Third Circuit found this insufficient to provide the required individualized notice at the time of leave. The Court also rejected the argument that the letter met the notice requirement because there was insufficient evidence of receipt. Although proof of mailing creates a presumption that a letter was received, this can be rebutted with evidence (here, an affidavit from the plaintiff) that it was not. The Third Circuit noted that the letter was not sent by certified mail or other method which would provide proof of delivery. Therefore, the grant of summary judgment below in favor of the employer was reversed.
The Retaliation Claim
That Lupyan plaintiff sought to return to work after expiration of the FMLA's maximum twelve weeks of leave did not preclude her retaliation claim. Recognizing that a retaliation claim's focus is on the defendant's actions, both during and after the leave, the Court held that an employee is not precluded from bringing a retaliation claim simply because her need for leave extends beyond the twelve weeks. Here, because the college gave conflicting reasons for termination, and that termination occurred in close proximity to the conclusion of her leave, a jury could find that plaintiff was fired in retaliation for exercising her FMLA rights. Thus, the Court also reversed the grant of summary judgment on the retaliation claim.
Practice Pointer
As a result of the decision in Lupyan, employers should confirm that their FMLA policies ensure that workers are provided with prompt notice both of their rights under the Act at the time the leave is granted, and also that their leave has been designated as leave under the FMLA. This notice should also state the dates of the leave, and the required date of return. If mailed, it should be sent via a method that creates evidence of delivery. Finally, although not raised in Lupyan, other laws often come into play when an employee requires a leave beyond the FMLA's twelve weeks. For example, the Americans with Disabilities Act requires that an employer make a case by case assessment of such requests, determining in each situation whether the requested extension constitutes a "reasonable" accommodation. Thus, even when required notice is provided, employers should not automatically terminate the employment of workers who are medically unable to return within twelve weeks.
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