Family Medical Leave Case Summary
Adams v Fayette Home Care and Hospice
Employers cannot terminate or retaliate against of their employees for taking FMLA leave. But what if the employee's past conduct or conduct during leave is suspected to be grounds for termination? Such a situation occurred in the federal case of Adams v. Fayette Home Care and Hospice.
In 2009, Cynthia Adams was working as registered hospice nurse for Fayette Home Care and Hospice. While on her fifth FMLA leave from Fayette, Adams showed one of her hospice patients and his wife pictures of her boyfriend’s genitals, which had been saved on her mobile phone. That patient then told a different nurse from Fayette what had happened and asked that Adams not return.
Because Adams had recently started a leave of absence under the FMLA, when should she be terminated if an investigation confirms she did indeed commit this breach of conduct? Should Fayette terminate Adams’ job immediately, or delay until Adams return from FMLA leave two months later? In this case, Fayette chose to wait until Adams’ FMLA leave ended before dealing with the accusations and ultimately terminating her.
Adams’ asserted the firing was in retaliation towards her due to the fact she got FMLA leave and did not admit to wrongdoing. A court rapidly dismissed her claim of retaliation. However,an appeal of the court’s decision was then sent to federal court.
In its decision, the appellate court wrote that it needed to determine if “a reasonable factfinder” would conclude that the incident involving the photos was just a pretext for dismissal. In order to make her case, the court said, Adams needed to provide evidence that the company was being inconsistent, contradictory or implausible in their actions.
In one part of the case, Adams contended that Fayette does not have a policy of communicating with employees on leave. She also asserted that she denied the charges against her when confronted by her employer, and therefore the investigation never truly ran a proper course.
On the first charge, the court did agree with Adams, and said Fayette did not have a formal policy for communicating with workers on leave. However, it said that a formal policy was unnecessary for a “reasonable factfinder to credit it.”
On the second charge, the court said whether or not Adams formally denied the charges is immaterial, since the burden was on Adams to discredit the charges being levied against her. The court also said that Adams appears to have dropped the issue of the charges being false.
Adams was ultimately unsuccessful in her appeal, but in looking at Adams’ FMLA claim, the court had to consider Fayette’s decision to wait two months until Adams came back to work before confronting her and terminating her. Could this be considered a discriminatory motive on Fayette’s part?
The court decided there was no such basis for retaliation.
“Fayette knew the full duration of Adams’s FMLA leave in advance; if it sought to retaliate, it had no reason to wait until the leave ended,” the court wrote in its decision.
What Course of Action to Pursue
The decision raises the issue of determining the best time to pursue a conduct investigation with respect to termination during a leave. In the past, some employers have acted more aggressively than Fayette by investigating conduct and firing an employee before the end of their FMLA leave period. A court would probably support this method as well, given that the company or organization had a solid case for termination.
So, is Fayette’s course of action the best way to go? Is it better to aggressively pursue potential code of conduct issues for a worker on leave? It all depends on the situation.
Of course, if the issue with the employee’s conduct is egregious or potentially dangerous, it behooves the employer to act as quickly as possible. For example, if the employee on leave is coming near the worksite and making threats toward other employees, the employer should move swiftly.
A company also needs to consider the reason behind a person’s FMLA leave. If the employee is undergoing intense chemotherapy for a life-threatening cancer, it might be prudent to deal with a conduct situation when the worker come back to their job and is in reasonable health. A court may not look favorably upon being too aggressive in this situation.
Also, if a worker is away from their job for a medical reason and is in a state where they cannot communicate effectively or make informed decisions, it may be best to hold off on any investigations. A worker needs to be able to respond to inquiries as best they can, so interrogating a person without all their faculties could be seen as malicious. In these instances, it's best to wait until the employee is in a condition that allows them to engage with an investigation.
Employers should also consider any past practices when it comes to dealing with conduct issues relevant to the particular case. A company can safeguard itself against possible litigation by acting in a consistent manner. For example, if many workers in a company keep personal photos on company computers, the company would not be well-served to investigate an employee on FMLA for having non-work files found on their hard drive.
Guarding Against FMLA Retaliation Claims
Ultimately, each situation is different and employers should approach every scenario with caution, consistency and respect.
To buffer itself against a claim similar to one levied by Adams, a company should maintain detailed disciplinary records. Records should include disciplinary track records, including those that led to termination in the past. Disciplinary situations should be tracked by type of violation, degree of violation and the particular part of the conduct code being violated.
These records can not only support an employer’s case by showing the terminated workers history, they can also be used to show how similar situations were handled (hopefully with consistency) in the past. A former employee’s lawyer may look through company records in an attempt to prove discrimination or an unjust pretext for termination.