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FMLA: Small goof costs big bucks

September 5, 2014

By Anthony Kaylin,  courtesy of SBAM Approved Partner ASE

As every HR professional knows, FMLA is an enormously complex law to correctly administer. Nevertheless, it is HR’s job to get all of the details right in every situation; if it does not, it can be very costly for the company.

In 2008, Vanessa Budhun was hired by Berkshire Health Partners (“BHP”), an affiliate of Reading, as a credentialing assistant. The written job description for this position required her to generate and maintain records, and to demonstrate “efficiency and accuracy in the credentialing” of network healthcare providers. The written job description noted that the job required a variety of clerical tasks. Ms. Budhun herself estimated that approximately 60 percent of her job was typing.

In early 2010, Budhun took approximately four weeks of FMLA leave in two separate segments. Then on July 30, 2010, she broke bones in her right hand in an incident unrelated to her job. She arrived at work on Monday, August 2 with a metal splint on her hand. At 10:33 a.m. that day, she received an email from a Reading HR employee stating “Your supervisor has made us aware that you have an injury that prevents you from working full duty,” and providing Budhun with FMLA leave forms.

Budhun saw her doctor and asked the doctor to fill out the FMLA leave certification form, explaining that her job required typing, and that she felt she could type with the five fingers on her left hand, and her thumb and index finger on her right hand.  Budhun emailed HR with the certification form on August 10, clearly indicating that she could return to work on Monday, August 16, stating, “No restrictions in splint.” 

When Budhun returned to work that Monday, she explained that she could do her work but not as fast as she was able before because of the splint. The HR representative replied that because Budhun’s return to work note “states ‘no restrictions’, therefore you should be at full duty (full speed) in your tasks.” The rep instructed Budhun to get another doctor’s note saying she could not do her job at full speed, and not to come back until she could work at full speed.

Budhun then got another doctor’s note which stated that she could not work at full speed, and requested leave for her until September 8th. 

BHP’s FMLA policy provides that if an employee fails to contact HR at the end of his or her leave, that employee will be considered to have voluntarily resigned.

Budhun’s FMLA leave was extended until September 23, 2010 when the total of her FMLA time off for the year expired. Budhun did not return and her position was offered to another employee.  Budhun remained on leave until November 9, but she failed to inform HR that she could return to work and was considered a voluntary termination per the FMLA policy.

Budhun brought suit on November 19, 2010, alleging FMLA interference and retaliation claims. At trial, the judge dismissed the suit because “[s]he was never medically cleared to return to work and . . . a doctor’s note was never provided to defendant.”  The trial court also held that Budhun suffered no adverse employment action because Budhun was medically unable to return to work at the conclusion of her FMLA leave.

Budhun appealed to the Third Circuit Court of Appeals. That court reversed the trial court’s decision.  First, the appellate court noted that Budhun’s “fitness-for-duty” certification clearly stated that she could return to work with “no restrictions.” Second, the certification has to address the employee’s ability to perform the essential functions of her job. However, Budhun had never been given such a list; the  fitness-for-duty certification was based only on the description of the job that Budhun herself gave. The court noted that it was the HR department that determined whether Budhun could do the essentials of the job, not Budhun’s doctor. The court concluded that Budhun’s termination was not voluntary but an adverse employment action.  Therefore, BHP could be held liable for retaliation.

The takeaway for HR is that when an employee goes on FMLA leave, you must ensure that the employee’s doctor has full information on the essential functions of the job.  In this case, it was not the typing but the speed of the typing—a small mistake, but it ended up costing the company big bucks.

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