On November 29, the Tenth Circuit Court of Appeals held that an employer did not violate FMLA by terminating an employee who failed to return to work after exhausting leave under the Family and Medical Leave Act (FMLA). McClelland v. CommunityCare HMO Inc. (10th Cir. 2012).
Billing specialist Teresa McClelland sued CommunityCare for FMLA interference and retaliation after she was fired for failing to return to work at the end of her FMLA leave for knee replacement surgery. The Tenth Circuit rejected McClelland’s interference claim because it was undisputed that CommunityCare provided her with the full amount of FMLA leave and gave her three weeks’ advance written notice that her FMLA leave would expire on December 16, 2010.
McClelland requested additional leave, saying that she might be able to return around January 4, 2011. CommunityCare denied McClelland’s request, but offered to accommodate her medical needs with reduced hours or work restrictions if she returned on December 16. McClelland did not respond to this offer, and CommunityCare terminated her employment when she failed to return to work on December 16. CommunityCare’s FMLA policy stated that employees who failed to return at the end of their leave could be terminated.
The court found no evidence that CommunityCare took adverse action that interfered with McClelland’s right to FMLA leave. In fact, McClelland testified that Gloria Peterson, the company’s human resources manager, “did everything she could” to help with “all of the FMLA issues.”
The court rejected McClelland’s retaliation claim because she failed to offer evidence showing that CommunityCare’s reason for firing her, her failure to return from leave, was a pretext for unlawful retaliation. The court also noted that McClelland did not dispute that CommunityCare encouraged her to return to work by Dec. 16 and offered to provide her with any necessary work accommodations.
Employers are faced with tough decisions when employees are not able to return at the end of FMLA leave. In many cases, an analysis of whether the employee’s serious health condition that required FMLA leave is also a disability under the Americans with Disabilities Act requiring reasonable accommodation will be necessary. Contact an MSEC staff attorney for assistance with these difficult situations.
The Tenth Circuit has jurisdiction over Colorado, Wyoming, Utah, New Mexico, Kansas, and Oklahoma.