Failing to Return Employee's Phone Calls May Be FMLA Retaliation


During a webinar I conducted last month with the EEOC's John Hendrickson regarding "leave" as a reasonable accommodation under the ADA, I pleaded with, begged, and cajoled employers to maintain regular contact with an employee while he or she is on FMLA leave. Here is another reason to heed this advice - failing to do so may increase your risk of an FMLA retaliation claim.

As Eric Meyer reports in The Employer Handbook blog, a federal court in Pennsylvania found that an employer's failure to return an employee's telephone calls while she was on FMLA leave is evidence of retaliation. In Hofferica v. St. Mary Medical Center, the plaintiff was a registered nurse who was approved for intermittent FMLA leave for an unusual medical condition that involved tinnitus, hearing loss and vertigo.

In September 2008, she took extended FMLA leave to undergo treatment for the condition. She expected to return by November 6, 2008. The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates. However, her supervisor often failed to return the calls. In early November, she provided a return to work certification clearing her return for November 13. She also contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return the call. Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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