Can you fire an employee who attends a pop concert while on FMLA leave?
Cue Lawyer’s Stock Answer Number One: It depends. (I know you all love that answer.)
On what does “It depend”? Lawyer’s Stock Answer No. 2: the circumstances.
Read on and we’ll explore a bit…
As always, (or at least as I often do) I have a real-life case example in mind.
The case is Jackson v BNSF Railway Company. Here, briefly, is what went down:
Ms. Jackson worked for BNSF since 2002. In 2015 BNSF changed her role to Marketing Manager, moving her from CA to TX. From the start, she struggled in that role, and her supervisor put her on a Performance Improvement Plan.
Within a week she requested a short-term disability leave, which BNSF promptly granted, telling her to take care of herself and to “let us know when you and your doctor think it is the right time for you to return to work”.
A week later she attended a Beyonce concert in the BNSF luxury suite — with a co-worker and in the presence of other BNSF employees. Word got back to Ms. Jackson’s supervisor, who called her 2 days later and left a voicemail message stating she wanted to discuss her attendance at the concert. (How this employee didn’t see that coming feels like a head-scratcher to me, but what do I know?)
Ms. Jackson rebuffed attempts at communication, and, BNSF fired her for leave abuse. Ms. Jackson sued, alleging FMLA interference and retaliation. The US Dist Court for the Northern District of Texas granted summary judgment to BNSF. The 5th Circuit affirmed.
For starters, BNSF didn’t interfere with her FMLA rights, as it readily granted her request. The court noted that continued FMLA is available only to employees. If she was properly terminated she wasn’t entitled to further FMLA.
The court also pointed out that an employer who takes adverse action against an employee on FMLA leave for reasons unrelated to the leave and/or for reasons based on an honest belief of misconduct is not liable for FMLA retaliation.
Taking FMLA leave and then going to a concert in front of your co-workers one week later can certainly give rise to an honest belief of leave abuse — especially if you don’t respond to your employer’s reasonable inquiries about why you aren’t well enough to work but can attend a Beyonce concert.
Now, I’m not saying that employees can’t do anything that might be fun or relaxing during an FMLA leave. In fact, some courts hold that an employee taking a vacation while on FMLA leave may not be leave abuse — if his/her activities don’t conflict with stated medical conditions. If attending a Beyonce concert didn’t interfere with medical restrictions, then doing so might not have been leave abuse.
The problem is that Ms. Jackson didn’t respond to her supervisor’s attempts to discuss the issue. (IMHO, if an employee requests leave and then one week later attends a concert with company tickets in company seats in the presence of co-workers, the employee needs to be ready to have that conversation.) Ms. Jackson didn’t explain how attending the concert didn’t interfere with medical restrictions but working did. She also told her supervisor that her doctor didn’t clear her to meet with her supervisor and that she’d answer questions when she came back from leave. Her response then raised even more questions. For one thing, her supervisor wasn’t asking her to meet in person and simply wanted to talk with her. How did that conflict with medical reasons but attending a concert didn’t?If Ms. Jackson had communicated appropriately with her supervisor and if BNSF had still terminated her employment, the result of this case might have been different.
While I believe BNSF and the courts got this one right, the right answer always requires an individualized assessment. Always investigate and try to communicate with the employee before you resort to termination.
Remember retention is supposed to be the goal. Termination is not supposed to be the “go-to” response, unless, as here, the facts warrant it.
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