Family Mediceal Leave Case Summary, FMLA Rules on Contacting Employees on Leave

Julie Vess v. Scott Medical Corp

When a worker is out on leave under the Family and Medical Leave Act (FMLA), an employer may need to contact her or him regarding work issues – such as to obtain a computer password or assistance in locating a file.

However, regular contact with the employee on leave could be considered a violation of FMLA rules and regulations. In the case of Vess v. Scott Medical Corp., a district court ruled that a case regarding inappropriate contact during leave could go to trial. The case should serve as evidence that employers need to keep contact to a minimum and pertain only to vital elements of a particular job.

Case Background

In March 2007, Julie Vess was hired by Scott Medical Corporation as a director of respiratory therapy at its Regency Hospital in Toledo, Ohio. The job included both managerial duties and interactions with patients on the hospital floor.

On Feb. 8, 2011, Vess hurt her right knee when she slipped in the hospital’s parking lot. She informed her supervisor immediately, who suggested she complete an incident statement and seek out medical care. Vess’ damage to her knee would call for surgery, and upon being diagnosed, she was granted 13 weeks of FMLA leave by the company. Vess also ended up getting workers’ compensation benefits for the injury.

Andrea Sheehy, a rehabilitation supervisor at the hospital, covered Vess’ management responsibilities during her FMLA leave. Vess’s supervisor, Verette Neeb suggested respirator practitioners supervised by Vess to deal with Sheehy until Vess returned. During her leave protected under FMLA rules and regulations, Sheehy, Neeb and the therapists normally supervised by Vess all contacted her at home regarding assorted work-related issues.

Vess had her knee operation on March 30 and came back to her job with minor limitations on May 10. Shortly after returning from FMLA absence, on May 12, an incident happened at the hospital when Vess believed a pulmonologist mixed up orders for two patients. After going over reports about the incident, the corporation suspended and then eventually fired Vess on for working outside the scope of her license. Vess claims the corporation interfered with her rights under FMLA rules and fired her in retaliation for both taking leave and filing a workers’ compensation claim.

The Court Case

Vess’ case for FMLA interference and retaliation was based mostly on the frequency of contact made by hospital employees during her leave time. She argued that the volume of contact made her feel compelled to come back to work and a general sense that her job may be in jeopardy due to her absences.
While out on leave, Vess was contacted regarding scheduling issues, her daily responsibilities, completing work-related education programs, data entry, and employee evaluation – according to her claims to the court.

Vess made the case that the hospital was guilty of ‘FMLA Discouragement’ and the district court said a plaintiff filing suit based on that premise had to provide evidence of the attempt to assert rights under FMLA rules and regulations and was dissuaded.

Vess did testify that other employees informed her that Neeb had made comments about replacing her while she was on leave. However, the court noted; Vess did contact the hospital’s human resources department regarding that rumor and the HR manager reassured her that her job was safe. The court also pointed out that the hospital did grant the FMLA leave and did reinstate her job.

Vess also made the case that her rights under FMLA rules were interfered with. To prove interference, a plaintiff needs to show proper notice of the intention to take leave was given to the employers and the employer subsequently denied benefit entitled under FMLA rules. Vess argued that the final stipulation, denial of benefits, was met through repeated contact during leave regarding work issues.

The court said that just because Vess was given 13 weeks of leave doesn’t automatically mean her right to take leave wasn’t interference with. It went on to say that an employee on FMLA leave isn’t expected to be “on call” while they are absent. However, the court qualified that statement by saying that an employee on leave could be expected to field the occasional essential inquiry as a “professional courtesy.”

The court said hospital employees went beyond “professional courtesies” when they discussed Vess is completing employee training programs, performance reviews, and data entry responsibilities. The court added that a jury could find that this interfered with FMLA rights.

Finally, Vess claimed that her former employer retaliated against her for taking leave under FMLA rules and regulations. To successfully make this case, a plaintiff needs to demonstrate she was exercising an activity safeguarded by the FMLA, her employer knew about his exercise and, as a result, took a negative action against her. A plaintiff also needs to show a causal connection between FMLA action and the employer’s action,

Both parties agreed to all of the stipulations except the last one that there was a causal connection between Vess taking leave and her being suspended.
The incident, which led to termination, appeared to be based on a mix-up involving ventilation orders for two patients given by Dr. Yoon, a pulmonologist. Vess thought that Yoon had mistakenly given the same orders for both patients, so she struck a line through the order for the second patient and unsuccessfully tried to contact Yoon for clarification.

Next day Yoon returned to find her orders were incorrectly given and had not been followed. Vess was subsequently suspended and ultimately fired.

The court held that to dismiss the claim of retaliation; the employer must show that it “made a reasonably informed and considered decision” when taking action. While the hospital did have a progression disciplinary system in place, it also conceded that there are times when a situation is so serious – it warrants immediate termination.

Vess argued that the proximity of the adverse action combined with Neeb’s statements about replacing her was sufficient to support a claim of retaliation. The district court agreed.

The Takeaway

This case study is a good example of why employers need to tread lightly when it comes to contacting workers out on leave. The court specifically cited the example of needing a computer password as a necessity for contact, and this example might serve as a reasonable measuring stick for making decisions about contact.


Julie Vess v. Scott Medical Corp (FMLA Court Case)

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