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Can Family Employers Be Liable For FMLA Violations For Verbal Promises?

An infusion nurse, who was allegedly terminated after requesting leave under the Family and Medical Leave Act (FMLA), recently sued her former employer, a health group in Connecticut, for FMLA retaliation. She also alleged disability discrimination, but the court granted the summary judgment in favor of the employer on her two disability claims.

The plaintiff alleges she requested, and was granted, intermittent FMLA leave to treat her adrenal insufficiency, leukocytosis, and thrombocytosis, by the third-party vendor used by her employer to manage FMLA leave requests. According to the plaintiff, the vendor said she could take FMLA leave, including leave on April 8, 2016.

The plaintiff alleged her supervisor confronted her about her scheduled leave. The supervisor allegedly told the plaintiff she should have come to her first, although the employer's written policy did not require her to do so.

According to the employer, on April 6, 2016, the nurse became ill while visiting patients, was arrested for erratic driving, and was transported to the hospital. The employer alleges the nurse tested positive for amphetamines at the hospital. The nurse argues that her disability caused her erratic behavior, which was related to dehydration and anemia. She was in the hospital for two days, for which she allegedly requested FMLA leave on April 8.

On April 19, 2016, the employer terminated the plaintiff, citing "unprofessional behavior based on complaints received from patients."

The court determined that the plaintiff provided sufficient evidence that her termination could have been motivated, at least in part, by retaliation for requesting FMLA leave. Mancini v. Accredo Health Grp., Inc., U.S. Dist. Ct. for CT, (Sep. 04, 2019).

Commentary and Checklist

Most family employers are not subject to the FMLA, which applies to employers with 50 or more employees who work within a 75-mile radius.

However, family employers should be aware of a situation in which they may be required to provide family and medical leave to staff - if they have promised FMLA leave to staff, even erroneously.

In Reaux v. InfoHealth Management Corp., Case No. 08-C-5068 (U.S. Dist. Ct. N.D. IL, E.D. 2009), a woman worked for an employer with fewer than 50 employees. She sued that employer for FMLA violations after the employer terminated her during her maternity leave.

The court decided the employer could not raise a defense to the employee's FMLA lawsuit based on the number of employees it had because the employer had told the employee, both in the handbook and verbally, that she was entitled to FMLA leave.

The handbook stated that the employer had a policy of providing unpaid leave to "eligible" employees "in compliance with the Family and Medical Leave Act of 1993." In addition, the plaintiff's supervisor allegedly told her that she would be entitled to maternity leave under the FMLA.

On the theory of equitable estoppel, the court found in favor of the former employee. "Equitable estoppel is a doctrine which precludes one party [the employer] from asserting a claim or defense against another party [the employee] who has detrimentally altered her position in reliance on the former's misrepresentation or failure to disclose a material fact."

Family employers must be careful about how they word their handbook and training, as well as what they or their managers verbally promise staff. If you do not have 50 or more employees, make sure that your written documents do not mention FMLA leave or if they do, that you explicitly say that the law does not apply to your workplace and that no employee has any rights under that law.

You should always take care when terminating an employee with an illness, disability, or other medical condition.

Here are some tips family employers should follow when terminating staff:

•      Consult with your household or business manager or other supervisor who works with the staff member to confirm that the termination is in your family's best interest and is legally sound.

•      Consider the staff member's status: is he or she on workers' compensation; did he or she just go on a medical leave; is the staff member in a protected class; or did the staff person report wrongdoing recently?

•      Always have legal counsel review the reasons for the termination and discuss the potential risks involved if you do proceed.

•      If litigation is a concern, consider a severance agreement, which could be substantially less costly than a wrongful termination lawsuit. This must be drafted by an attorney to make sure it is enforceable.

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