Can Brent Musburger Take A Leave Of Absence From ESPN For Work-Induced Stress?

by Franczek Radelet P.C.
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Feel free to call me out for shamelessly piling on veteran broadcaster Brent Musburger.  But by now, you know that issues arising under the Family and Medical Leave Act are part of the American fabric as much as baseball and apple pie, right?  Well, at least on this blog it is.

For those of you living under a rock for the past 48 hours, let me set the stage before I get to the question posed in the title above.  Musburger served as the play-by-play announcer for the BCS National title game between Alabama and Notre Dame earlier this week. After two quick touchdowns put Alabama up 14-0, ESPN began scrambling for a new story line in what was setting up to be a blow out.  So, the camera panned (several times) to Katherine Webb, the girlfriend of Alabama Quarterback A.J. McCarron.  She also happens to be a former Miss Alabama.  Musburger fawned over the attractive Webb on national TV, calling her "a lovely lady" and "beautiful," and then engaged his broadcasting partner and former college QB, Kirk Herbstreit, further in the following banter:

Musburger: "You quarterbacks, you get all the good-looking women . . . what a beautiful woman."

Herbstreit: "Wow!" 

Musburger: "Whoa!"

Herbstreit: "AJ's doing some things right down in Tuscaloosa."

Musburger: “If you’re a youngster in Alabama, start getting the football out and throw it around the backyard with pop.”

Access the actual video clip here.  Musburger was not the only one in America to notice Webb.  In the past 48 hours, her twitter followers have jumped from 2,000 to over 200,000.  

The criticisms of Musburger's comments have been fast and furious.  Musburger has been more than embarrassed, culminating in this apology he and ESPN issued to Webb and viewers.     

Stress-induced leave of absence

Day in and day out, oodles of employees claim that an embarrassing situation at work or a difficult boss causes them to suffer work-induced stress that requires a leave of absence from the job.  So, Musburger's situation got me thinking (since all things in life indeed come back to the FMLA): If Musburger claims he has suffered job-related stress as a result of the backlash he's received inside and outside of ESPN, can he seek FMLA leave?  

In a word, yes (a reason why I will always have work as an employment attorney).  Unfortunately for employers, there are handfuls of cases from various states across the country where a court has found that stress caused by the workplace can be a basis for taking leave from work so long as the stress rises to the level of a serious health condition that renders them unable to perform their job. 

Take, for example, Meadows v. Texar Federal Credit Union.  There, the plaintiff, a former   operations manager at the credit union, was placed on a performance improvement plan (PIP) because of performance problems.  Thereafter, Meadows' manager met with her on several occasions to inform her that her performance was not improving and that she would be terminated in 30 days if her performance did not improve.  Rather than taking her performance up a notch, Meadows sought FMLA leave for stress caused by the demands at her job.  While on leave, she engaged in activities of everyday life: shopping, taking trips, attending ball games and social functions, traveling with her son to a basketball camp out of town and to an out of town birthday party, watching television, and shuttling her children to and from school and sports practices.  However, her health care provider confirmed that she could not work.

In a blow for employers, the court refused to dismiss her FMLA claim, finding that the evidence showed that the plaintiff was:

depressed, stressed out, nervous, and upset.  She had become this way because of what she believed to be unjust criticism of her job performance by [her supervisors] and because she felt [her supervisors] had threatened to fire her.

As a result, the court determined that a jury would need to decide whether the plaintiff suffered from a serious health condition under the FMLA that required her to take leave from her job.

Ouch.  

Insights for Employers

Note to ESPN: Be afraid. Be very afraid.

Note to all other employers: When faced with a situation like the one in the Meadows case, before you panic, use the tools given to you by the FMLA: 1) insist upon complete and sufficient medical certification (so you have a clear picture of the employee's medical condition and their need to be off); 2) seek clarification from the employee's health care provider if the employee is not providing a sufficient and complete certification; 3) if you have reason to doubt the certification, seek a second and third opinion; 4) seek recertification every 30 days while the employee is on leave to maximize your understanding of the continued need for leave; and 5) maintain regular communication with your employee so you remain up to date on their status and can better gauge their ability to return to work.

If that fails, it's time to call your friendly neighborhood employment attorney and best wishes on the wild ride ahead.

Photo credit: USA Today

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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