Archive for February, 2013

YOU CAN TAKE A LEAVE BUT YOU CAN’T TELL A LIE

Every once in a while, I read a case that just makes sense. You know, one where the law is applied the way it is supposed to be.  This one involves the Family and Medical Leave Act. The purpose of the law is to protect individuals who can’t work because they have a serious health condition. It is, in short, a shield. And when it is used properly, it provides the intended protection. Unfortunately, the FMLA is often used as a sword.  An employee who is on the verge of losing his or her job suddenly comes up with some ailment and needs the leave. Then the employer feels handcuffed.

Not so fast. Come with me on a little trip, which  starts in Detroit where a hospital hired a nurse.  One day, the nurse was moving stretchers at work. The next day, she said she woke up with excruciating pain in her lower back and leg. Her doctor, who was employed by the same hospital, suggested a leave. The nurse applied for and was granted FMLA leave.

It just so happened that the nurse had a preplanned, prepaid trip to Mexico scheduled, which coincided with her FMLA leave. She didn’t want to get in trouble at work, so she got a statement from her doctor, who said the trip would not be as physically demanding as performing her work duties and would not interfere with her recovery. So off to Mexico she went.

So far, so good right?  Not quite. You see, the nurse had a Facebook page. And on it she posted pictures of her vacation in Mexico, riding in a motorboat and lying on her side holding up two bottles of beer in one hand. She also posted photos of herself while she was standing and holding her grandchildren, one in each arm, and she wrote about trips to the store, watching her grandchildren and taking online classes. Her coworkers complained to management.

And that’s not all. She sent an e-mail to her supervisor complaining that she had not received a get well card from the staff.  And thus began the e-mail chain. Her supervisor responded by saying “the staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.”

Here is what the nurse said in her reply:

Jessica,

As far as the airport, customs, etc., goes, I was in a wheelchair because I couldn’t stand that long. As far as the plane goes (3.5 hr. flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.

* * * * *

I want to come back to work as soon as possible and wouldn’t have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

One small problem: She didn’t use a wheelchair on the trip. When the nurse got back from leave, the hospital held a meeting and asked the nurse about this statement.  At first, she stuck to her statement, but then admitted that he had lied. In fact, she ultimately admitted that she walked through both airports, stood in line for more than 30 minutes and held her grandchildren, all of which violated the restrictions from her doctor.  The hospital fired her for dishonesty, which is a violation hospital policy. She sued, claiming the hospital interfered with her right to take FMLA leave and retaliated against her for taking leave.

And she lost.

The court went right to the FMLA regulations when it granted summary judgment for the hospital:

“An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”

The court noted that the nurse lied about her abilities and about the wheelchair and  then admitted that she lied,  so that evidence was undisputed.  The hospital didn’t do everything right, however.  For example, there were some inconstancies in the reason for the termination. But the court reconciled those inconsistencies and was satisfied that the hospital had fired the nurse for lying and would have fired her for lying whether she was on a leave or not.

But then the court went on to say that it didn’t really matter if the nurse lied or not. Using the “honest belief” doctrine, the court stated:

“An employer is entitled to summary judgment under the “honest belief” doctrine when the employer honestly believes, based  on particularized facts, that an employee lied and misused her FMLA leave and disciplines/terminates such employee based on such belief.”

Now that is the way the FMLA is supposed to work. This almost restores my  faith in it.  You can read the entire case, Lineberry v. Detroit Medical Center here.

Speaking of the FMLA, look for our survey of how the FMLA has impacted you in our next HR Focus in mid-March.

Two Wrongs Don’t Make a Right.

Let me set the scene: Let’s say there is this guy who happens to believe some incredibly ignorant, misguided, morally repugnant things.  Some might call him a white supremacist, others who decided to be politically incorrect, might call him a Nazi and still others might just call him a racist. Regardless of what others might call him let’s say he is so stupidly proud of his beliefs that he has a swastika tattoo and he shows it off.

Before we go any farther, let me remind everybody that our guy here has a RIGHT under the First Amendment to the U.S. Constitution to hold these views no matter how ignorant they might be. And as long as he does not act on these views and commit a crime, he can’t be arrested for what he believes.

But now this guy, armed with his First Amendment protection, has to interact in society. So lets say he goes to a luxury hotel and tells the manager he doesn’t want to be waited on by a black waitress.  Does he have that right? The answer to that question is easy. Yes, he has the right to be stupid. And the hotel HAS AN OBLIGATION to refuse his request. He can get up and leave, but the hotel CAN’T (and shouldn’t) honor his  request. Sound familiar? That’s because I have written about this before. Go here if you want to read that post.

So now, two years later, the same issue has come up again. But this time there’s a twist. Let’s assume this time, our guy is a new father with a brand new baby who is in a hospital neonatal intensive care unit being cared for by an African-American nurse. And he doesn’t like it. So, let’s assume he goes to the charge nurse and asks that no African-Americans be allowed to care for his child. Sound far-fetched?  Check out the article in Detroit Free Press, no luxury hotel, but the hospital part, well, take a look at the article.

Now here is the shocking part, at least for me, according to the Free Press article, the hospital accommodated (I was going to say honored, but that word just didn’t fit) his request. In fact, the Freep article said the hospital went so far as to put a note on the baby’s chart indicating that no African-Americans could care for the child. And according to the Freep for the next month or so no African-American nurses were assigned to the baby’s care.

So what about that “twist” I mentioned?  Sounds like the hotel all over again, doesn’t it?  Well, the Freep article quotes a Wayne State professor saying, “This case puts ‘into tension two different facets of the law’ . . .  Patients choose their doctors, he said . . .  But there are also laws prohibiting discrimination.” There is a difference between the hospital and the hotel, isn’t there?  The father can leave the restaurant, but he can’t simply take his baby out of the hospital — not out of neonatal intensive care anyway.  So is there tension as the Wayne State professor suggests?  I don’t think so and I respectfully disagree.  There is no tension in the law. The hospital, just like the  hotel, CAN’T  honor this request.

Yes, people make decisions based on ignorant and misguided prejudices every day.  And when they keep their prejudices to themselves, there isn’t much society can do. That is part of living in a free country. So can you choose a doctor based on nothing more than the doctors race?  And by the way, the insinuation in the article that this is somehow similar to a woman who prefers to go to a female gynecologist?  Come on, not the same thing, not even close.  Any way, can you chose a doctor based on race?  I suppose you can, it’s stupid, but you can.   But when these types of individuals interact with society, they have to follow society’s  rules.  That means setting aside the ignorance and certainly not facilitating it.

The Freep article quoted another professor who got it right, in my estimation. “The patient’s father has a right to select the hospital to treat the child. The father does not have the right to exercise control over the hospital in discrimination of its employees,” he said.

You see, the hospital has some obligations here. In addition to providing excellent care to its patients, a hospital has obligations as an employer. One of those obligations is to not racially discriminate against its employees.  There are good nurses and bad nurses, black nurses and white nurses, and race has NOTHING TO DO with quality of care.  That’s right, I said it, one has nothing to do with the other.  And a hospital as an employer CAN’T, let me say that one more time, CAN’T, no matter what it’s patients want, make employment decisions based on race.

So if the allegations in the story are true is the hospital in a difficult position here?  Not in my opinion, No. The answer is easy, the hospital should have denied this man’s request. And if he doesn’t like it? Well, that’s just too bad.  Like my grandmother used to tell me: Two wrongs don’t make a right.

FMLA SURVEY: NOW THAT’S WHAT I CALL ‘SPIN’

To recognize the 20th anniversary of the Family and Medical Leave Act (FMLA), the Department of Labor issued the results of a survey on the FMLA on Monday.  In the news release entitled, “Family and Medical Leave Act benefits workers and their families, employers” announcing the survey results the DOL made some pretty surprising statements. You can see the press release here.  And you can see the survey results here. And what exactly did the DOL have to say about the “landmark” FMLA?  Let me quote from the press release:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale. Finally, 90 percent of workers return to their employer after FMLA leave, showing little risk to businesses that investment in a worker will be lost as a result of leave granted under the act.

Really?

Far be it from me to call into question the results of the DOL’s survey, but who was surveyed?  Maybe companies in Mexico or Canada or China?  Or maybe a bunch of companies with fewer than 50 employees. I’m sure administering the FMLA is no problem for them at all.  But my experience working with larger employers has been a bit different.

I have been practicing law for slightly more than 20 years. I was a first-year lawyer when the FMLA was signed. During those 20 years, I have worked in this law firm and I have been an in-house lawyer for a major corporation. And in those years I’m willing to bet I have answered more questions from clients about the FMLA than about any other law.

The ADA is a close second, but I’m pretty sure the FMLA leads the pack. And when clients call me to ask questions, they get a bill. So they don’t do it lightly. “Easy to comply with the law”?  If that ain’t spin, I don’t know what is.