Date: Nov 01, 2013
WG&S November 2013 - WGIS Responds to Affordable Care Act

While an employee has the right to return to the position held before taking a family medical leave, this right is not absolute.  If an employer can show a lawful reason for not restoring an employee to his or her position, the employer may legally terminate the employee.  The reason must be unrelated to the employee’s exercise of family medical leave rights.  Family medical leave is not a shield to protect employees from legitimate disciplinary action if they engage in activities that violate company policy.

The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) do not prohibit an employer from firing employees while they are on leave or after they return from leave.  These laws simply forbid employers from firing them because they took protected family leave.  However, employers should be cautious because even though they may not be liable under the family medical leave laws, they could be found culpable under other laws.


Case Study

In a case decided before the Ninth Circuit Court of Appeals (which includes California and Arizona), Stephanie Gambini, a clerk with a history of mental health problems that predated her employment, began to experience depression and anxiety after several months at work.  Within five months she experienced an emotional breakdown at work.  Gambini was eventually diagnosed with bipolar disorder.

Gambini soon returned to work and informed her supervisor she was seeking medical treatment for bipolar disorder, and was required to meet with her boss who presented Gambini with a performance improvement plan.  The plan stated, “[Gambini's] attitude and general disposition are no longer acceptable in the SPA department.”  Gambini began to cry, threw the document across the desk, hurled several “choice profanities” and slammed the door on her way out.  Back at her cubicle, Gambini tried unsuccessfully to call her treating psychiatric nurse practitioner to tell her about how upset the meeting had made her feel and about her ensuing suicidal thoughts.  Gambini was briefly hospitalized and went out on FMLA leave.

The company investigated the incident and on the next business day called Gambini on her cell phone to tell her that her employment was being terminated.  Gambini sent the company a letter stating that her behavior during the meeting was a consequence of her bipolar disorder and asked her supervisor to reconsider the decision to terminate her.  When the company refused, Gambini filed a lawsuit which proceeded to trial.  After a seven-day jury trial, the jury returned a verdict in favor of the company.  Gambini appealed and the Court of Appeals affirmed.

The court found that the company lawfully terminated Gambini because of her behavior and not because of her exercise of rights under the FMLA.  If an employer terminates an employee for a legitimate, non-discriminatory reason, such as a violation of company policy, it will not be a violation of the FMLA.  (Gambini v. Total Renal Care, Inc. (2007) 486 F.3d 1087.)


Employer Beware

Even though the company prevailed in this case, it’s worth noting that the Court of Appeals focused largely on the instructions that were given to the jury, dispensing with Gambini’s argument that the trial court erred in refusing to give a requested jury instruction and other alleged procedural errors committed by the trial court.  In fact, the court noted that under the Washington anti-discrimination law, the employee was entitled to a jury instruction that “conduct resulting from the disability … is part of the disability and not a separate basis for termination.”  In other words, an adverse employment decision motivated even in part by a disability potentially violates anti-discrimination law.

However, the Court said, requiring such an instruction in no way provides employees with absolute protection from adverse employment actions based on disability-related conduct.  Under the Americans with Disabilities Act and similar Washington (and California) anti-discrimination laws, a plaintiff must still establish that she is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”


Tips for Employers

If a case with identical facts were to be tried in a California court as a Fair Employment and Housing Act (FEHA) claim as opposed to a FMLA claim in federal court, the result could very well be different.  That is why it’s important for employers considering terminating an employee on FMLA/CFRA leave to also consider if the interactive process and reasonable accommodation requirements under FEHA are applicable and have been satisfied.  An employer considering taking an adverse employment action against an employee on leave should:

•  Keep accurate records of all disciplinary actions relating to employees.

•  Follow your policy on granting FMLA leaves and reinstatement rights.

•  Consider if the employee may be protected under FEHA; remember that FEHA's definition of disability is construed broadly

•  If the employee is protected under FEHA, engage in a timely, good faith, “interactive process” to determine what if any reasonable accommodation the employee may be entitled to.

•  Never terminate an employee on FMLA without first consulting with legal counsel.

WG Staff Contact

Jason Resnick
Vice President & General Counsel

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