By: Carol G. Schley, Clark Hill PLC
A recent decision from the Sixth Circuit Court of Appeals affirms the importance of precise documentation and diligent monitoring by an employer when an employee takes FMLA leave.
In LaBelle v. Cleveland Cliffs, Inc., Kevin LaBelle worked as a quality-control lab technician, which required him to make repetitious motions while standing with his arms outstretched for up to 12 hours per day. The employee also had avascular necrosis, which caused him to suffer constant pain in his shoulders. In 2016, the employer granted Mr. LaBelle intermittent leave under the FMLA pursuant to a doctor’s certification that stated Mr. LaBelle “intermittently will have exacerbations that limit work,” and that he will need to miss work during “flare ups” that occur about once per month for three day periods. Based upon the certification, the employer informed Mr. LaBelle that he could take intermittent FMLA leave for “up to four medical appointments per year and for monthly flare-ups, which could last up to three days per episode.” The notice to Mr. LaBelle also confirmed that FMLA leave was “limited to the condition specified” in the medical certification.
The employer soon noticed a suspicious pattern. Mr. LaBelle tended to take his intermittent FMLA leave in conjunction with other scheduled days off, weekends and vacation days. The employer hired a private investigator who on two occasions recorded Mr. LaBelle playing golf when he was out on FMLA leave. The employer conducted an internal hearing, at which Mr. LaBelle said his shoulders hurt every day, so he understood his intermittent leave could be taken at any time of his choosing. He also admitted to playing golf when he was out on FMLA leave, but said that playing golf was much less aggravating to his shoulders than performing his job duties. At the conclusion of the internal hearing, the employer determined that “if Mr. Labelle was experiencing a shoulder flare-up that prevented him from working, he would not be able to golf and that if he could golf he could work,” and terminated his employment.
Mr. LaBelle filed a lawsuit against the employer asserting FMLA interference and retaliation claims. As support for his claims, Mr. LaBelle referenced internal emails discussing his absences from work, in which a manager referred to Mr. LaBelle as a “hot potato” and stated that he would “dearly love to get at least one of these slackers.”
The court held that Mr. LaBelle could not state a viable FMLA interference claim, as there was no dispute that he was granted FMLA leave by the employer, despite hostility to his absences as shown by the manager’s emails. The court also granted summary judgment to the employer on Mr. LaBelle’s FMLA retaliation claim, as its decision to terminate him had a basis in fact. Per the court:
Cliffs approved LaBelle’s request for intermittent FMLA leave for two reasons: (1) attending medical appointments and (2) taking three days off per month for a “flare-up.” Even crediting LaBelle’s explanation of why it was ok for him to golf, or why he “stacked” his leave, LaBelle did not take FMLA leave for “flare-ups” or medical appointments. He took FMLA leave because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA leave was for… If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.
The key takeaway from this case is that accurate documentation and careful monitoring by an employer is a must when handling FMLA claims. Here, the employer’s written notice to Mr. LaBelle describing the circumstances under which he could take FMLA leave tracked the doctor’s certification regarding his condition. Because Mr. LaBelle’s time off was outside the authorized scope of his leave, the employer did not run afoul of the FMLA when it decided to terminate him.
Another takeaway from this case that has general applicability is to exercise prudence when putting things in writing (including emails) about an employee. While the manager’s emails about getting “slackers” like Mr. LaBelle ultimately did not prevent the employer from prevailing, under other circumstances such statements can be fatal to an employer’s defenses, or at least be sufficient to prevent an employer from prevailing on summary judgment.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at firstname.lastname@example.org or (248)530-6338.
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