Thou Shalt Not Discourage: An FMLA Cautionary Tale for Employers
The Eleventh Circuit Court of Appeals recently vacated a district court’s summary judgment order on the basis that a jury could find that the defendant employer interfered with the plaintiff employee’s rights under the Family Medical Leave Act (FMLA) when its Human Resources (HR) Manager sent the plaintiff an email discouraging her from taking her full leave entitlement under the FMLA. See Diamond v. Hospice of Fla. Keys, Inc., 677 Fed. Appx. 586 (11th Cir. 2017).
In Diamond, the plaintiff, Jill Diamond, worked as a social worker for the defendant, Hospice of Florida Keys, Inc. Throughout plaintiff’s employment with the defendant, the plaintiff took intermittent leave under the FMLA to care for her parents who had serious medical conditions. In March and April of 2014, the plaintiff took almost two weeks of leave to care for her ailing mother. In April 2014, the defendant’s HR Manager sent the plaintiff an email stating that the plaintiff’s “continued unpaid time away from the workplace compromises the quality of care [the defendant is] able to provide as an organization.” See Diamond, 677 Fed. Appx. 586, 590. For fear of losing her job, the plaintiff decided to forego using all of her approved FMLA leave. Nonetheless, in May 2014, the defendant terminated the plaintiff.
To establish an interference claim under the FMLA, the plaintiff had to prove that she was (1) denied a benefit to which she was entitled, and that (2) she suffered harm as a result. Under the FMLA, “benefits” include taking up to 12 weeks of leave in a single 12-month period and being reinstated after taking such leave. Refusing to authorize leave to an eligible employee or merely “discouraging” an eligible employee from using such leave constitutes interference under the FMLA. See 29 CFR 825.220(b). Under the FMLA, harm can include “any monetary losses” incurred by an employee because of her employer’s violation of the FMLA.
The Court held that a reasonable jury could find that the defendant discouraged plaintiff from taking FMLA when it sent her an email essentially warning her that taking additional FMLA leave could jeopardize her job. The Court also held that there were sufficient facts in the record for a jury to find that the plaintiff suffered harm. Specifically, the plaintiff testified that she would have taken more FMLA leave had the defendant not discouraged her from doing so, and that she incurred additional travel costs by making turn-around trips to her mother’s home instead of staying for an entire month as recommended by her mother’s doctor.
In short, this decision is a cautionary tale for employers on what not to say to employees who request leave under the FMLA.