FMLA May Protect Leave for Visits to the Doctor

​A bakery that fired an employee who left work early to see doctors concerning his prostate cancer, for which he sought Family and Medical Leave Act (FMLA) leave, has viable claims even though his doctor did not timely certify the absences for FMLA leave, a federal district court ruled.

The plaintiff worked for Lewis Brothers, a commercial bakery, from March 14, 2000, until Oct. 5, 2016. He was covered by a collective bargaining agreement between the bakery and his union that set forth a points-based absenteeism policy. The policy assigned various point values to different absences, including five points for every time a worker is tardy to work or leaves work early. Once an employee reaches 100 points, the bakery discharges the employee, but at least 18 employees who were fired upon reaching the 100-point maximum were subsequently rehired.

The plaintiff's prostate cancer was diagnosed in September 2016. He told the bakery's human resource manager that he would be leaving work early that day and expected that he would need to take leave for cancer treatment. The HR manager gave the plaintiff a blank medical certification form to qualify for FMLA leave and conditionally approved the early departure as FMLA leave. The plaintiff dropped the paperwork off with his doctor.

The plaintiff then changed doctors and notified the HR manager that he would be leaving early to see his new doctor. The HR manager allegedly responded that she would "take care of" the medical certification form, which the plaintiff understood to mean that she would send it to the new doctor. On Oct. 4, 2016, the HR manager told the plaintiff that he was terminated for reaching 100 absenteeism points. She told him to come in the next day and speak to the plant manager.

The next day, Oct. 5, 2016, the plaintiff realized that his doctor had not completed and submitted the medical certification form within the required 15-day period. He contacted his doctor, who completed the form that day. The doctor certified that the plaintiff would need leave for surgery in November and December 2016, but the form did not address the plaintiff's early departures from work in September 2016 to see his doctors about his prostate cancer.

For this reason, the bakery did not reverse its decision to fire the plaintiff, even though his 100-point balance for absences would have decreased to 50 points in a couple of weeks under the absenteeism policy. When the plaintiff asked to be rehired, the bakery refused because of his poor attendance and history of workplace conflicts in 2011, 2012 and 2015.

The plaintiff filed a federal lawsuit against the bakery claiming violations of the FMLA, the Americans with Disabilities Act (ADA) and the Tennessee Disability Act. The bakery moved for summary judgment on all claims.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The court noted that the FMLA required the plaintiff to timely submit a medical certification form. Nevertheless, the plaintiff notified the bakery that he had prostate cancer, which served as the basis for his FMLA leave. The bakery knew that his September 2016 visits to his doctors related to that condition and thus had notice of the plaintiff's need for leave.

While the FMLA certification form was not completed within 15 days, the plaintiff could have reasonably understood the HR manager's statement that she would "take care of" the form to mean that she would make sure it was timely completed.

Even though the plaintiff had a history of workplace conflicts, those conflicts happened years before he was discharged for absenteeism. This provided evidence of pretext, as the plaintiff had already moved beyond those mistakes and continued to be an effective employee.

For these reasons, the court denied the bakery's motion for summary judgment and allowed the case to proceed to trial.

Curlee v. Lewis Brothers Bakeries Inc. of Tenn., M.D. Tenn., No. 3:17-cv-01347 (April 3, 2019).

Professional Pointer: HR professionals should carefully explain all steps required for an employee to obtain job-protected leave, and avoid making vague statements about handling a step for an employee. Otherwise, an employer could have to defend itself at a trial for claims of violations of the FMLA and ADA.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Family and Medical Leave Act.]