Atlanta, GA – On January 27, 2017, the Eleventh Circuit Court of Appeals decided Diamond v Hospice of Florida Key, and analyzed how to review claims of FMLA interference and retaliation.   Here are the facts.  The Plaintiff, Ms. Diamond was a social worker for Hospice of Florida Keys.  She submitted the proper FMLA paperwork because her parents were ill. Hospice approved her to take intermittent FMLA leave.  She took leave at various times between June 2013 and February 2014.  Hospice policy mandated that she use her PTO during these absences.  When she was almost out of paid leave, she received a written notice that her balance was low and that continued absences could affect her employment.  The notice didn’t mention FMLA—just her low PTO balance.  There was an allegation that receipt of this notice could discourage an employee from taking FMLA leave, or continuing to take qualifying FMLA even when PTO was exhausted.

Other allegations of interference and retaliation included (a new HR Manager):

• A new HR Manager was hired in the middle of the FMLA intermittent leave
• She was asked for an updated medical certification when her mother’s condition worsened.
• While on leave, the CEO warned her that she could lose her job if she worked for another company.
• The new HR Manager requested documentation to verify that she was actually in the places she claimed to be.
• When her mother was admitted to the hospital, Hospice asked for more documentation.
• Hospice also noted that her “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.”
• Hospice warned her that she might want to conserve her FMLA leave, as it was “running low” which caused her to not take available leave, which caused her to leave her parents early and not provide recommended care.
• Five days after Hospice warned her (about 2 weeks after her last leave), Hospice terminated Diamond for poor job performance.

The Eleventh Circuit stated that to establish an FMLA interference claim: (1) that she was denied a benefit to which she was entitled under the FMLA and (2) that she was prejudiced by the interference.  The Court found that interference goes beyond denying leave or refusing to reinstate. Citing the regulations, the Court found that discouraging an employee from using leave can be interference.  Importantly, the employer’s intent doesn’t matter—only the employer’s conduct and whether it discouraged the employee.  Lastly, a plaintiff may not need to show denied leave or lost wages to prove prejudice from the interference.  If she got the leave (and thus did not lose wages), she can show actual monetary losses sustained as a direct result of the alleged violation.

What are the lessons for employers?

• The way you grant FMLA leave is as important as giving the days requested.
• Be consistent about treating performance problems during intermittent FMLA leave so you can rebute allegations of retaliation or interference.  Your focus should be on what an employee does, not on their availability or reliability.
• Follow the rules for re-certifications and don’t ask for extra “proof” apart from what is allowed under FMLA regulations.  If you think the employee is lying, don’t ask for receipts, but use another method to investigate.
• Discouraging FMLA leave has now been elevated to interference under this decision.
• Train managers about FMLA and employee rights, and that they should not express frustration with employee absences.

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