Dive Brief:
- A former store manager for a Hardee’s restaurant in Nebraska can go to trial on her claims she was unlawfully denied leave under the Family and Medical Leave Act and allegedly fired because of her diabetes, the 8th U.S. Circuit Court of Appeals held July 1 (Huber v. Westar Foods, Inc.).
- The manager woke one morning with low blood glucose levels and symptoms of hypoglycemia, including disorientation, according to court records. She didn’t go to work or call in and instead drove to the hospital for treatment. The next day, after sleeping past the start of her shift while recovering, she phoned her supervisor to report the episode and emailed a doctor’s note. The following day, still out, she emailed her supervisor and an HR representative for FMLA paperwork.
- Westar denied her FMLA request and told her she was fired for violating its call-in policy, which required her to call her supervisor two hours prior to her shift “when possible” if she couldn’t work. The manager sued, alleging violations of the FMLA and the Americans with Disabilities Act. The 8th Circuit reversed judgment for the employer and sent the case back for trial.
Dive Insight:
It’s not uncommon for FMLA and ADA claims to intersect.
This is because the FMLA gives eligible employees the right to take up to 12 weeks of unpaid leave a year for a “serious health condition,” and a serious health condition may include a disability under the ADA, according to guidance from the U.S. Department of Labor’s Office of Disability Employment Policy.
The ADA doesn’t specifically require employers to provide medical or disability-related leave, the ODEP points out. But it generally requires employers to reasonably accommodate qualified employees with a disability unless doing so would present an undue hardship, the ODEP explains. Reasonable accommodations may include leave for treating diabetes or recuperating from a diabetic incident, the U.S. Equal Employment Opportunity Commission notes in its guidance on the disease.
The Huber case raises a tricky compliance issue concerning the overlap of the two statutes. That is, how should HR respond if, after an employee is given a last chance warning for violating a company policy, the employee violates the policy again, but for reasons possibly protected by the ADA and/or the FMLA?
According to court records, shortly after the manager started working at the restaurant, she abandoned her shift without notifying a supervisor, and Westar coached her on the importance of communicating schedule changes in advance.
Several months later, the manager received a written warning for failing to notify her supervisor she was leaving her shift, court documents said. The warning informed her that any further violations could lead to termination.
A few months after that, she suffered the diabetic episode. She was able to drive herself to a doctor’s office, where she received sedating medication, but her boyfriend had to drive her home, according to the record. Westar learned of her absence after a customer called to complain the restaurant wasn’t open. The next day, she didn’t call her supervisor until nearly three hours after her shift started.
In ruling for Westar on the ADA claim, the district court found the manager failed to show Westar’s stated reason for terminating her — that she violated the call-in policy — was a pretext for disability discrimination. The court concluded that even if she didn’t violate the call-in policy, Westar presented evidence that it had a “good faith” belief she did.
In a split decision, the 8th Circuit reversed. The panel ruled 2-1 that it couldn’t say “as a matter of law that Huber was capable of calling in during her diabetic episode.” Whether the decision to fire her was made independently of her diabetes and whether Westar acted in good faith were questions of fact for trial, the two judges held.
However, the panel unanimously reversed judgment for Westar on the manager’s claim it violated the FMLA (i.e., interfered with her FMLA rights) by denying her request for FMLA leave.
While employees are required to notify their employer they plan to take FMLA leave, under the regulations, they must still follow their employer’s usual and customary call-in procedures for reporting an FMLA absence, an attorney previously explained to HR Dive.
There is an exception for unusual circumstances, such as when an emergency prevents the employee from calling in, the attorney noted. That may be relevant here, the 8th Circuit found.
The panel said a trial was required to resolve material questions of fact regarding the claim, including whether the manager notified Westar “as soon as practicable” of her need for FMLA leave and whether her diabetic episode prevented her from complying with the call-in policy.