The FMLA permits eligible employees to take up to 12 work weeks of leave during a 12-month period if a “serious health condition . . . makes the employee unable to perform the functions of [his or her] position.” Employers are prohibited from interfering with qualified employees’ benefits or leave under the FMLA. However, the 3d U.S. Circuit Court of Appeals recently held that the FMLA does not shield an employee from discharge merely because an alleged misconduct occurred during an FMLA leave, nor does it prohibit termination of an employee who abuses the terms of an FMLA leave. Warwas v. City of Plainfield, 3d Circuit, No. 11-1736, July 25, 2012.
Jadwiga Warwas, a licensed physician, was hired in 2003 by the City of Plainfield, New Jersey, as the City’s Health Officer. In 2006, Warwas requested sick leave under the FMLA for several health issues. In order to determine Warwas’s eligibility for leave, Plainfield required Warwas’s treating doctor to complete a medical provider certification form. The doctor completed the form, indicating that Warwas “was restricted to home and could not work/attend school. Based on that information, Plainfield granted the leave request.
In spite of the treating physician’s assertion that Warwas was unable to work, Warwas continued to work at home on a part-time basis for the City of Paterson, New Jersey. When Plainfield learned about that work, it terminated Warwas’s employment on September 30, 2006. Warwas appealed that termination to the Merit Systems Board, which ultimately reinstated her employment. However, during the month of April 2008, Warwas was expected to return to work, and was told that further absences would result in her termination. When she failed to return, her employment was again terminated.
Warwas brought an action against Plainfield for interference with FMLA leave. At the close of discovery, Plainfield’s motion for summary judgment was granted, and Warwas appealed. The Third Circuit upheld the district court’s decision after finding that Plainfield terminated Warwas for reasons “entirely unrelated to the exercise of her rights under the FMLA.” Plainfield believed that Warwas had failed to use her FMLA leave for the intended purpose when, in spite of her doctor’s assertion that she was unable to work, Warwas continued to work for Paterson while on leave. According to the Third Circuit, “Warwas is not entitled to a greater degree of protection for violating Plainfield’s Municipal Code merely because she was on FMLA leave when caught and terminated.” The Court found that Warwas was terminated not for her use of FMLA leave, but for the perceived misuse of the leave and her subsequent failure to return to work.
Because this opinion is non-precedential, the Court did not provide extensive factual or procedural detail which may have explained the more than five-year lapse of time between the initial termination action and the 2012 Third Circuit decision. However, the basic rationale is clear: the FMLA does not prohibit an employer from firing an employee who abuses FMLA leave, or who violates an employer’s policy while on that leave, even if the employee is eligible and qualified for the leave. An employer can defeat an FMLA interference claim by providing evidence of an honest belief that either of those circumstances is present.