A recent Federal District Court case out of Arkansas has potentially significant implications for employers regarding Family Medical Leave Act (FMLA) benefits. The Arkansas District Court recently ruled in Terwillinger v. Howard Memorial Hospital that too much contact with an employee currently out on FMLA leave could be interpreted as interfering with the employee’s right to FMLA leave.
Regina Terwillinger worked as a housekeeper for Howard Memorial Hospital for approximately two years before requesting and being approved for FMLA leave for back surgery. During Ms. Terwillinger’s recovery, her supervisor contacted her weekly to determine when she was going to return to work. Terwillinger asked her supervisor if her job was in jeopardy due to her absence, to which her supervisor replied she should return to work as soon as possible.
As a result, Terwillinger felt pressured to return to work sooner than she had planned. Less than a month after returning, Terwillinger was fired for theft. Terwillinger filed suit against the hospital alleging violations of the FMLA for retaliatory discharge and interference. She also argued in her suit that the hospital denied her the full benefit of the FMLA when it pressured her to return to work while she was on FMLA leave.
Although the Court rejected Terwillinger’s retaliation claim, it ruled there was enough evidence of FMLA interference for the case to go forward. Under FMLA, employers are prohibited from “interfering with, restraining or denying an employee’s exercise or attempted exercise of any right contained in the FMLA.” The court further indicated that “an employer’s action that deters an employee from participating in protected activities constitutes an interference of the employee’s exercise of his or her rights.”
The “chill theory,” adopted by numerous courts, indicates a “chilling” of FMLA rights is sufficient for an FMLA interference claim. The court indicated that “a reasonable jury could conclude that the hospital interfered with Terwillinger’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.”
In light of this recent ruling, employers should avoid too much communication with employees during FMLA leave. Although many employers may be genuinely concerned with their employees’ welfare, they should be mindful that their contact could be interpreted as threatening or applying pressure to return. Getting a clear indication of the length of the leave from the employee beforehand is a good way to avoid potential miscommunication.
Once employers know the employee’s expected return date, they should not contact the employee until about a week or so before his or her expected return. In addition, direct supervisors should not contact employees directly. Asking human resources personnel to contact the employee is a good way to buffer the communication. Finally, employers should be advised to speak carefully when discussing returning to work with an employee on FMLA leave in order to avoid misinterpretation of their intent.