A Full-Time Employee’s Doctor Says She Can Only Work Part Time at the End of Her FMLA Leave.
Miller & Martin PLLC Alerts | July 25, 2018
Can You Fire Her?
Most employers, including the one involved in the lawsuit the title of this article is based upon, Hostettler v. The College of Wooster, would answer this question “yes.” After all, the Family and Medical Leave Act (FMLA) regulations expressly provide that employers may terminate an employee if she is not able to return to performing all of the essential functions of her job at the end of her 12 weeks of FMLA leave. Pregnancy normally is not a “disability” so as to qualify an employee for additional leave under the Americans with Disabilities Act (ADA). Even if the employee were to have unique complications which did render her “disabled” under the ADA, being able to work full-time normally would be presumed to be an essential function of any “full-time” job. Right???
Spoiler Alert – the Sixth Circuit Court of Appeals (which covers TN, KY, MI and OH) held the employer in this suit was not entitled to have this case dismissed, despite following the above-described “legal logic.”
The employee in this lawsuit, Heidi Hostettler, was an HR Generalist in a small HR department of 6 people. She was responsible for helping managers address employee relations issues, including performance-improvement plans, helping to recruit new hires, and designing training programs, among other duties.
Heidi went out on maternity leave and was actually granted a little more than 12 weeks of leave. At the end of her maternity leave, Heidi's doctor released her to return to work part-time, saying she had “severe post-partum depression and separation anxiety.” Her employer allowed her to work part-time for the next two months per the initial doctor’s release note. At the end of this initial two-month period, (you guessed it!) Heidi brought in a new doctor’s note saying she needed to continue working part-time until “she could be evaluated at her next appointment,” which was scheduled in another two months. The employer terminated Heidi’s employment the day after receiving this second doctor’s note, saying it could not continue allowing her to work part-time in a full-time job because “too many things were falling through the cracks.”
Heidi filed suit, alleging violations of the FMLA and ADA along with the Pregnancy Discrimination Act (PDA).
The federal district (trial) court dismissed this case in favor of the employer.
As noted in the Spoiler Alert above, the Sixth Circuit Court of Appeals reversed this decision, allowing the case to proceed to trial.
The Sixth Circuit’s basis for this reversal was as follows:
Regarding Heidi’s FMLA claim, the Court held that even though the employer had actually given Heidi more than 12 weeks of leave, because it had referred to all of the leave (including the intermittent leave she had taken while working part-time) as “FMLA leave,” her “FMLA interference” claim could not be dismissed as a matter of law, since she had been terminated while still requesting to work part-time.
Another interesting “side note” in this case is the employer “thought it was being nice” by allowing Heidi to begin her maternity leave before she qualified for FMLA leave yet still calling this “pre-FMLA leave” “FMLA leave” so it would be job-protected and it could use FMLA paperwork to support it, etc. This ended up falling into the “no good deed goes unpunished” category of employer decisions, as the employer not only did not get any “credit” for this “extra leave” but ended up getting penalized on the back end because it arguably did not give Heidi a full 12 weeks of “actual” FMLA leave once she became eligible for it by terminating her after she had worked part-time for only 8 weeks.
Regarding Heidi’s ADA claim, this is where things really get interesting. The Court first held that Heidi’s “severe post-partum depression and separation anxiety” did constitute a “disability” as a matter of law. Even witnesses for the employer testified that they had observed Heidi going into full-blown panic attacks, unable to breath, think or walk when she tried to work more than a half a day. The Court made this finding despite the fact Heidi’s doctor had indicated in his initial release note that “post-partum depression and separation anxiety rarely last more than six months.” So, here is an example of a court determining that a “disability” exists based on the intensity of the flare-ups, even though the underlying condition is short-term.
The Court also held that “it was not a ‘given’” that working full-time was an “essential function of a full-time job.” Heidi had some unique circumstances going for her on this point. First, one of her co-workers testified on her behalf that she “did a great job,” “was very responsive,” “would respond to things she didn’t get to during the day at night,” and that “she was unaware of anything ‘falling through the cracks’” that had been part of Heidi’s job responsibilities while she had been working part-time. Heidi also received her mid-year performance review just a few weeks before her termination. No mention was made in it of any issues with her working part-time or of anything that had “fallen through the cracks” as a result of this. The review gave her an overall “strong” rating and contained several positive and no negative comments. Finally, her supervisor was unable to identify anything in particular which had “fallen through the cracks” while Heidi was working part-time, despite saying this was the reason “we had to let her go.”
Regarding Heidi’s PDA claim, the Court cited the same circumstances which are referenced in the ADA claim discussion above to show “there is evidence that [Heidi] could have been discharged based on her pregnancy,” as the employer’s stated reason “that things were falling through the cracks” was not supported by her co-worker’s comments or even her supervisor’s, such that it could have been pretextual/a cover up for discrimination.
What We Can Learn from this Case
- To quote the always wise John Bode, “be nice to pregnant women.”
- Be sure to indicate in writing when an employee’s FMLA leave has ended, even if you are approving them to continue using “additional medical leave” as a form of ADA accommodation or otherwise.
- It is not a good idea to “call” non-FMLA leave, such as leave you decide to provide before an employee actually becomes eligible for FMLA leave “FMLA leave,” as by doing so, you “heap burning coals” on your own head, by invoking the full protection of the FMLA on this leave without getting the benefit of getting to “count” this “extra ‘niceness’ leave” against the employee’s “real” 12 weeks of FMLA leave.
- Be sure your supervisors can “back up” with “actual examples” the “undue burden” they are telling you their departments are experiencing as a result of “Employee X being out on leave beyond her 12 weeks of FMLA leave.”
We often get calls and emails from HR professionals who are citing comments from exasperated supervisors who are telling them, “we HAVE to fill this job RIGHT NOW,” “we are basically holding this department together with duct tape,” etc. This case illustrates how such generalizations can fall apart under the scrutiny of litigation – when the employee’s attorney gets to “grill” the supervisor under oath to provide “details” as to “WHY” the job had to be filled “RIGHT NOW.” Be sure to prepare your supervisors for this scrutiny BEFORE you allow them to talk you into firing someone, by playing a little “devil’s advocate” of your own and forcing them to provide you with details (that you then WRITE DOWN so you both can recall what they were two years from now if needed in a lawsuit).
As always, should you have any questions about this decision, or your own pregnancy or disability accommodation situation, please contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.