Can you get a beer on intermittent FMLA? Court says yes.

Personal-Injury-Consumer-Law-Litigation-Attorney-1Intermittent FMLA has always been and probably always will be a contentious issue between employer and employee. Employers often have negative attitudes about intermittent FMLA leave centered largely around self-serving beliefs that employees abuse the legally protected leave rights and do not really need the time off from work. Certainly some employees do abuse FMLA but employers tend to start with the belief that the FMLA leave is dishonest and that unfortunately often results in FMLA violations by denying employees protected FMLA leave or worse, terminated them for taking the leave. FMLA leave protections cut in favor of the employee, especially when circumstances for the leave under any other condition would justifiably lead to disciplinary action. Today’s discussion highlights the facts in Brady v. Bath Iron Works Corp. which speak to exactly this scenario and why an employer’s negative presumptions are wrong.

The facts of FMLA lawsuit Brady v. Bath Iron Works Corp.

The facts here are pretty straightforward. Brady was an employee of Bath Iron Works who suffers from depression and anxiety. He requested intermittent FMLA to take time off to deal with his mental condition when necessary. The employer approved the request. On a particular day the employee went to work and about four hours later determined his mental condition was degrading due to work stress and informed his employer he needed to take the day off from work as FMLA leave. He proceeded to leave with another coworker and went to lunch where other employees saw him drinking. The employer’s physician contacted the employee’s physician inquiring about the situation. The employee’s physician responded (in more definite language) that work stress is the problem and leaving work is the cure.

The following day he went to work to find out the employer revoked his access. The employer suspended him, then fired, for reportedly FMLA abuse. Employee filed suit with claims of FMLA violations. The employer moved to dismiss the claim. The employer asserts the behavior was inconsistent with his purported need for FMLA leave. The employee (and his physician) asserts that work stress aggravates the condition.

Analysis of the court’s opinion

Under any typical situation if an employee claimed a need to leave work and then went and drank at a restaurant one would expect the employer could reasonably fire the employee. FMLA leave is not the typical situation in which the employer has unlimited power to discipline an employee for leave. Here the employee allegedly had a valid reason to leave work–work stress degraded his mental health–and he left work and had some drinks over lunch. It is certainly not unreasonable to believe food and alcohol might help an employee de-stress from work. It’s the purpose of happy hour.

At a minimum we have to suspect that lunch and drinks would not bring stress comparable to work. So unsurprisingly the court denied the motion to dismiss. Ultimately we don’t know whether the employee will prove his claims. We can gleam working rules that (1) what is true for non-FMLA leave is not necessarily true for FMLA leave and (2) employers put themselves in dangerous territory not considering the connection between the activity and the basis for FMLA leave.

Employers’ attorneys often hold tightly to the line of cases that support termination for honestly suspecting FMLA abuse. There are cases supporting this proposition, mostly under the theory that if the employer had an honest belief that FMLA abuse was occurring then the employer lacked a discriminatory animus. In other words the disciplinary act was not motivated by the employee’s FMLA leave or leave request. These cases look at more than a bare suspicion, but suspicion where the employer investigated and found credible facts that confirmed the suspicion was likely true.

error: Content is protected !!
Scroll to Top