Lawfully Fired Employee May Claim “Chilled” Exercise of FMLA Rights Despite Receiving Leave
By Ted Olsen
Employers have the duty not to "interfere with" the exercise of any right under the Family and Medical Leave Act. 29 U.S.C. § 2615(a)(1). This duty is completely separate and apart from the duty to provide 12 weeks of leave to eligible employees, to reinstate employees at the end of their FMLA leaves, and not to discriminate or retaliate against employees who exercise their FMLA rights or oppose any practice that violates the FMLA. A recent case illustrates these separate prohibitions, as an employer that lawfully:
was found to have possibly "chilled" the employee's exercise of FMLA rights, because the hospital arguably discouraged her from taking the leave. Terwilliger v. Howard Mem. Hosp., No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011).
In Terwilliger, a hospital housekeeper took an 11-week FMLA leave of absence for back surgery. According to her doctor, she had no medical restrictions when she returned to her job. One month later, after a series of thefts occurred in the hospital when the plaintiff was on duty, a surveillance camera caught her opening a coworker's drawer in an office she had not been assigned to clean. She was fired for attempted theft.
The Court rejected the housekeeper's claim of discriminatory and retaliatory discharge under the FMLA, ruling that - as a matter of law - the hospital lawfully believed she was attempting theft. Although the plaintiff denied any actual theft or attempted theft, there was no evidence disproving the employer's lawful, non-discriminatory, and non-retaliatory belief.
The housekeeper did not contend that she did not receive a lawful FMLA leave of absence; nor did she contend that she was denied reinstatement in employment as required by the FMLA. However, she asserted - and the Court ruled she could continue with the claim - that she felt pressured not to take the leave and to discontinue it early. The Court held that a jury could find that the hospital had discouraged or "chilled" her exercise of FMLA rights.
Specifically, the "chilling" claim was based on assorted actions by the hospital:
"Interference" claims are not the most significant FMLA liability risk for employers. But employers that go to great lengths to comply with the FMLA should be careful not to say or do anything that could be construed as "chilling" or discouraging any employee from exercising FMLA rights.
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©2011 Sherman & Howard L.L.C. March 3, 2011