Employers beware: Just when an employee gives you the left jab, look for the right hook. The combination of the two, as far as the Family and Medical Leave Act is concerned, can knock employers out. As reported by my colleague, Scott Cruz, last week, an employee may be able to add up two medical conditions -- neither of which would alone constitute a serious health condition under the FMLA -- to take FMLA leave.
Consider these facts, as reported by Scott: Angela Fries worked for a marketing company as a telemarketer and suffered from genital herpes and interstitial cystitis (I had to look it up: it's an inflammation of the bladder wall). On a Friday, she missed work because of alleged pain and frequent urination. The next day, she claimed to have difficulty urinating and by the evening could not urinate. On Sunday, Fries went to the emergency room, where her doctor attributed her urinary retention issue more to the herpes than to the interstitial cystitis. The ER doctor installed a catheter, prescribed medications, and instructed her to take off Monday and return to work on Tuesday.
While at the ER, Fries texted her supervisor and informed her that she was in the hospital and had a doctor’s note supporting the need to miss work on Monday. Apparently not a fan of genital herpes, Fries' supervisor texted her back, informing Fries that if she missed work on Monday, she would be terminated.
Guess what happened next? Fries was initially suspended for missing work on Monday and later terminated after she threatened to sue. In a move that should never ever (repeat: NEVER) be repeated again, the Company sent her a termination letter, which stated, in part:
Originally was suspended for 30 days, threatened to sue company and management. It was then decided that termination was the best.
To make matters worse, Fries' boss later testified in a deposition that her termination was motivated "a little bit" by her threat to sue the Company.
Not surprisingly, Fries brought an FMLA interference and retaliation claim against her former employer. The Company argued that Fries did not have a serious health condition under the FMLA because she was not incapacitated for more than three days. Specifically, it argued that Fries’ interstitial cystitis caused her urinary issues on Friday and Saturday and her herpes caused her inability to urinate on Sunday and her Monday absence. If you do the math, the employer suggested, neither condition resulted in Fries being incapacitated for three or more days.
The Court rejected the Company's arithmetic. Acknowledging that each of Fries’ medical conditions alone may not have incapacitated her for three or more consecutive days, the court found that two conditions (which alone do not constitute a “serious health condition”) can together rise to the level where they are “temporally linked” and affect the “same organ system.” As for Fries' retaliation claim, the court concluded that because the employer admitted that Fries’ threat to sue was at least “a little bit” of the reason for her termination, and her termination letter stated that Fries only was going to be to suspended until she threatened to bring a lawsuit, a jury could conclude that it violated the FMLA by retaliating against her for threatening to sue. Check out the court decision here: Fries v. TRI Marketing
Insights for Employers
A couple of obvious takeaways:
As the court stated in this decision, when reviewing an employee's medical condition within the context of FMLA, the employer's focus should be on the cumulative, adverse effects of the related medical conditions afflicting the employee at the time she seeks leave from work. In a nutshell, two can equal one.
When you make foolish, foolish comments in a termination letter that reek of retaliation, you will pay the price -- almost every time. File this suggestion in the common sense folder: Don't ever draft a termination letter that states anything along the lines of "threatened to sue ... termination is best." Back in the day, the nuns would give us a swift swat on the knuckles for that, and make us stand the rest of the day with our nose flush against the blackboard. Such places are a lonely existence. Don't be the employer that meets the same fate.
When you find that you want to terminate an employee even "a little bit" because they threatened to sue, you need to (honestly) identify a non-discriminatory reason for the termination. And if you are an attorney reading this post, take additional time next time to prepare your decisionmaker for his deposition!