For FMLA purposes, what is the definition of a year?
October 15, 2015
By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
Under the Family Medical Leave Act, an eligible employee is one who works for a covered employer (50 or more employees); has worked for the employer for at least 12 months; has at least 1,250 hours of service with the employer during the 12-month period immediately preceding the leave; and works at a location where the employer has at least 50 employees within 75 miles. For employers who are FMLA eligible, a question that requires a technical answer is whether an employee, particularly a new employee, has one year of credited service.
In the case of Ena Wages v. Stuart Management Company, No. 14-2793 (8th Circuit Court of Appeals, 8/10/15), Wages began working for the StuartCo on November 17, 2008 as a caretaker at one of its commercial properties. A caretaker is responsible for vacuuming, cleaning, mopping, washing windows, and dusting as well for snow removal. Wages worked thirty hours per week at the complex
In the summer of 2009, Wages found out she was pregnant. Because of her past history, her doctor considered the pregnancy to be high risk. Wages later said she called HR about leave and benefits, but no one responded to her call, or even remembered her calling. The company’s HR director did not recall any such phone calls from Wages.
In October 2009, Wages was experiencing stomach cramps, and her doctor restricted her from mopping and vacuuming. StuartCo made accommodations for her. On November 9, 10, and 12, due to pain, Wages missed worked. On November 12, 2009, her doctor limited her to working no more than 20 hours per week, although she was cleared to do all duties except snow removal. Wages gave the doctor’s note to her supervisor on Friday, November 13, 2009, and worked a few hours that day.
Wages supervisors and HR met to discuss Wage’s situation and decided to terminate her. According to the company, her reduction in hours precluded Wages from completing “the essential functions of her job.” On November 16th, Wages clocked in, was called into her supervisor’s office and was terminated.
Wages sued StuartCo for multiple reasons, including violation of her FMLA rights. The District Court upheld her FMLA eligibility and FMLA retaliation claim at summary judgement. StuartCo argued that it had fired Wages one day before her 12-month anniversary with the company, and thus she was never eligible for FMLA leave. The District Court disagreed and held that Wages satisfied the 12-month requirement by using non-FMLA leave to “bridge the gap” or carry her to the eligibility date, November 16th. Both sides agreed that she had worked the 1,250 hours. Although the need for leave came before she was eligible, Wages was fired on the last day of the year that started on her first day of employment. Thus she was eligible for FMLA leave.
The 8th Circuit Court of Appeals upheld the District Court’s finding as to her FMLA entitlement and her FMLA retaliation claim (although it vacated the District court’s award of $160,000 damages, sending the case back to that court for a jury to determine the proper amount of the award).
The 8th Circuit even pointed to a document dated November 16, 2009 that stated that “[Wages’s] employment with StuartCo has been terminated. Our records will reflect today as [Wages’s] last day worked.” Presumably, had Stuart terminated Wage on November 15th, she would not have had the FMLA claims.
It should also be noted that Wages might have had a pregnancy discrimination claim, because as the 8th Circuit pointed out from upholding the FMLA retaliation claim,
StuartCo’s decision to fire Wages was directly connected to her request for a reduction in hours, which is protected under the FMLA. It was at all times undisputed that Wages’s restrictions were pregnancy related and not permanent. There has been no suggestion that she could not continue mopping, vacuuming, or shoveling at a later date.
The 8th Circuit held that no reasonable jury could miss the connection. Although StuartCo had in the past accommodated her pregnancy issues, the same reasoning the court used likely could apply to her termination being related to her pregnancy.
The takeaway for HR is that for FMLA purposes one year means the first and last day of a year, not the first day of one year and first day of the following year. The notice for a leave, regardless whether it is FMLA eligible, can give rise to FMLA notice if the eligibility arises, as in this case. The company should have reviewed its personal leave policy as well (if there was one) and if Wages was eligible for that leave. Regardless of statements, actions do speak louder than words.