By: Karen L. Piper
Plaintiff worked as a clerical employee of Miller Compressing from 1999 to 2012. She was experienced and highly valued. In July 2011, plaintiff requested and was granted intermittent FMLA leave to take her autistic two-year old son to medical appointments and therapy. In February 2012, plaintiff’s son, who attended two days a week, was expelled from day care because of his aggressive behavior, which was a product of his autism. Plaintiff then asked if she could work from home those two days a week and use FMLA leave as needed to care for her son. She submitted an FMLA certification from her son’s health care provider, which said he had autism and was a danger to himself and others. Plaintiff’s request was granted. Plaintiff was allowed to work from home two days each week. The time she spent caring for her son while at home was counted as FMLA leave.
In summer 2012, plaintiff’s employer was experiencing serious financial problems. The employer canceled all telecommuting arrangements. Plaintiff was called in by Human Resources on a Friday afternoon and told that, beginning on Monday, she would have to work in the office eight hours a day, five days a week. Human Resources told plaintiff that she could not use FMLA to care for her son outside of doctor’s appointments and therapy.
Plaintiff was unable to find day care for her son over the weekend. On Monday morning, plaintiff went into work to let them know. Plaintiff was told that as soon as she missed work she would be terminated. Plaintiff did not have child care for that day and left the office. Human Resources processed her termination, retroactive to the previous Friday. Plaintiff was not provided the employer’s standard three weeks’ notice or severance pay in lieu of notice until a month after her termination. When she was offered severance pay, it was contingent on her signing a release.
Plaintiff sued for FMLA retaliation. The case was tried and a jury found plaintiff’s termination was in retaliation for her use of FMLA leave. Plaintiff was awarded lost wages, liquidated damages and attorneys’ fees. The employer appealed.
The Seventh Circuit Court of Appeals (covering appeals from federal courts in Illinois, Indiana and Wisconsin) affirmed the jury’s verdict in plaintiff’s favor. It ruled that autism is a serious health condition and plaintiff was entitled to reduced schedule FMLA leave to provide routine care for autistic son, not just intermittent FMLA leave for doctor appointments and therapy. Wink v. Miller Compressing Co., Case Nos. 16-2336, 16-2339 (7th Cir., January 9, 2017).
The decision does not say why the employer acted so quickly. If she had been given more time on her telecommuting schedule, plaintiff might have been able to find alternative care for her son or she might have been able to find another job that could accommodate her need for leave and left on her own. If she had been granted FMLA leave for two days a week, she might have left on her own when her FMLA leave ran out in 30 weeks or less. FMLA issues can be challenging. That’s why it is helpful to consult with experienced employment counsel, such as the author, when dealing with challenging FMLA issues.
This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or firstname.lastname@example.org.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. February 2017.