Employer’s Frequent Calls to Employee During FMLA Leave May Create Interference With FMLA Rights

Under the Family and Medical Leave Act (FMLA), an employer is prohibited from denying, restraining, or interfering with an employee’s rights to qualified leave.  One federal court recently found that an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with the employee’s FMLA rights.  Terwilliger v. Howard Memorial Hospital, WDAK, No. 09-CV-4055, January 27, 2011. 

The FMLA provides to eligible employees up to 12 weeks of unpaid leave for qualifying conditions, and precludes employers from interfering with an employee’s rights under the Act.  Under the regulations associated with the Act, interference includes “discouraging” an employee from using FMLA leave. 

Regina Terwilliger was employed as a member of the housekeeping staff at Howard Memorial Hospital in November 2008 when she applied for FMLA leave.  Her application was granted on November 26, 2008; Terwilliger underwent back surgery on January 29, 2009.  During her recovery, Terwilliger received weekly phone calls from her immediate supervisor, asking for a return to work date.  According to Terwilliger, she felt “pressured” into returning and, in fact, during one call, asked her supervisor if her job was in jeopardy.  The supervisor simply replied that Terwilliger should return to work “as soon as possible.”  Terwilliger returned to work on February 16, 2009, less than three weeks after her surgery.

In October and November, 2008, four Hospital employees had money stolen from their desks or lockers.  In December, Hospital management placed a camera in one office area.  On March 9, 2009, in spite of the fact that Terwilliger was not assigned to clean that particular office, she was caught on tape opening a desk drawer, looking into it, and closing it without removing anything from the drawer.  She then was terminated, along with another housekeeping employee who also was caught on tape removing something from the desk drawer and placing it into her pocket.

Terwilliger filed a lawsuit claiming violation of FMLA.  She alleged that she was denied the full benefit of her leave, because she was pressured to return to work after her surgery.  She also claimed that she was fired in retaliation for taking FMLA leave.  The hospital filed a motion for summary judgment, arguing that Terwilliger was released by her doctor to return to work, and that she was not deterred from taking her full 12-week FMLA leave.  It also argued that its reason for firing Terwilliger was based upon a legitimate business reason – the violation of its policy against stealing. 

In spite of Terwilliger’s protests that she had not stolen anything and that, therefore, the Hospital retaliated against her by firing her, the district court held that the relevant inquiry was whether the Hospital’s articulated reason for Terwilliger’s termination was a pretext for retaliation, and not whether Terwilliger actually did what she was accused of doing.  The court granted summary judgment on the retaliation claim.  However, it denied summary judgment on the interference claim, holding that the supervisor’s weekly phone calls to Terwilliger may have discouraged her from fully exercising her rights under the FMLA.  Therefore, a jury will have to decide that claim.

Employers should understand the administrative complexities of the FMLA, and must recognize the limitations that the Act imposes on employers.  While there is no prohibition on obtaining information related to the anticipated length of a leave under the FMLA, it is unwise to over-communicate requests to return to work which, as seen in this case, could be viewed as possible interference with an employee’s rights.