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Time and time again, the question is
asked regarding the right of a municipality to
terminate an employee who decides to take leave
pursuant to the Family Medical Leave Act. While the
answer to this question might still be somewhat
fuzzy, the United States District Court for the
District of New Jersey rendered a decision examining
this issue and generating some clarity as to how a
municipality must treat employees who request leave
under the Family Medical Leave Act.
In the aforementioned case, an improper
termination action was brought by an employee
against her employer after she was terminated for
excessive absenteeism. In terminating the employee,
the employer specifically cited to its attendance
policy, which stated that when an employee was
absent in excess of eight times within a year,
termination could result. Throughout 2003 and during
the first half of 2004, the employee was absent far
in excess of eight days and gave no excuse for these
absences. From July to September 2004, the employee
was absent seven times.
On October 12, the employee was absent yet again, claiming
she had a severe gallbladder attack and could not
drive to work that day because of a pain medication
she was taking. After learning this, the employee’s
supervisor requested the employee appear on October
13 for a meeting to discuss her absenteeism. The
supervisor intended to terminate the employee at the
meeting. On October 13, the employee failed to
appear for the meeting. Instead, she notified the
human resources department that she suffered from a
gallbladder condition and that she intended to take
medical leave as a result. On October 14, the
employee sent in a doctor’s note describing her
condition and a need for a follow-up surgery to
correct it. The employee was officially terminated
sometime after human resources received the note.
The court ruled that the employee was
entitled to judgment in lieu of a trial for her
claim that the employer interfered with her Family
Medical Leave Act rights. The court reasoned that
although the employer was not informed of the
employee’s condition when it decided to fire her, it
was given notice before the termination was
implemented. The court found that the employee
provided sufficient notice under the Family
Medical Leave Act by (1) phoning in her absence as
soon as the gallbladder attack occurred and (2)
providing medical backup within two days of the
absence. According to the court, once the employer
was aware of the employee’s gallbladder problem, it
was obligated to provide her with medical leave.
The upshot of this case is that once a
municipality is notified of an employee’s medical
condition, even if the notification is oral or comes
after the absence, the municipality must comply with
all of the Family Medical Leave Act requirements.
Furthermore, once the decision to terminate an
employee is made, there should not be any suggestion
of continued employment before the employee is
notified of the termination. In this case, the
supervisor’s request for the employee to meet with
her the next day following the employee’s absence
suggested the employee would enjoy continued
employment, even though the employer claimed the
decision to terminate the employee had been already
made. In an improper termination action, a court
might construe any suggestion of continued
employment immediately preceding termination as
evidence that the termination was made for an
improper or retaliatory reason.
When faced with such a situation, the
municipality must immediately inform the employee of
its intention to terminate their employment or fact
the possibility that the employee will “invoke” the
Family Medical Leave Act and preclude termination.
While the District Court case decision hinges on the
facts of the individual case, it is advisable for
the municipality to take swift action to terminate
to place the employee on notice of the
municipality’s intention, and then immediately act
in accordance with the contractual and/or statutory
requirements regarding termination as they apply to
that municipality’s specific situation.
If
you have questions regarding labor relations in your
municipality, please contact Steve Glickman, NJCM
Labor Relations Counsel at
SGLICKMAN@RGLABORLAW.COM
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