Employers will likely be relieved to know that in the case of Huffman v Speedway LLC, the Sixth Circuit Court of Appeals affirmed the dismissal of a lawsuit brought by a former pregnant employee who was terminated for job abandonment.
In this case, the employee’s physician requested that the employee not perform numerous job duties during her pregnancy, and the employee conceded that those tasks simply would not be completed at the gas station/convenience store when she worked alone .
The employer determined that it could not accommodate the request because those duties had to be completed for the convenience of its customers (i.e., making tea, cleaning the restroom, emptying the trash, etc.). Therefore, the employer offered the employee leave under the Family and Medical Leave Act (FMLA).
The employee objected, claiming she was not ready to start her leave, and she refused to return the FMLA paperwork. Instead, she began to use vacation days. Eventually, the employer sent her a letter stating that if she did not return the leave paperwork, she would be fired for job abandonment. That is exactly what occurred.
In her lawsuit, the employee argued she was fired in violation of her FMLA rights after she refused to take leave under the Act. The appellate court analyzed her claim under the interference theory since that is how she plead her claim.
The interference claim failed, however, because an involuntary FMLA leave only interferes with the employee’s right to take FMLA if, later during that same year, the employee becomes incapacitated, requests leave under FMLA, and has none left to take because of the prior involuntary leave. But, this did not occur because her employment had ended.
The appellate court noted that, had the employee pleaded a retaliation claim under FMLA, it too would have failed. Involuntary leave, by itself, does not violate FMLA. Therefore, opposing involuntary leave is not protected conduct under the act and termination for refusing involuntary leave cannot be retaliation for exercising rights under FMLA.
Finally, in case you are wondering, the employee also asserted a claim for pregnancy discrimination, but it failed because there was evidence that the employer treated all workers with significant work restrictions the same.
Remember, an employer is not required to provide light duty to any employee (except as an accommodation under the ADA, but that is not truly light duty). Employers, however, typically provide light duty to employees who are injured on the job in order to keep their worker’s disability compensation premiums down. If an employer does that, then it must also do the same for pregnant workers with the same or similar ability or inability to perform their job.
While this case is good news for employers, it is an unpublished decision. Before you make the gutsy decision to force an employee to take FMLA leave, or if you need assistance developing a “light duty program,” you would do well to consult with legal counsel.
- Of Counsel
An of counsel attorney in the firm’s Detroit office, Claudia D. Orr exclusively represents and advises employers and management in employment and labor law matters.
Ms. Orr has an ever-growing practice in Alternative Dispute ...
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