Stroke Leads to Job Termination: FMLA Violation?

A federal court refused to dismiss a lawsuit filed by an employee who was fired after taking FMLA leave to recover from a stroke.

The ruling puts a spotlight on two important questions. First, how much contact should employers have with employers on FMLA leave? And second, what are the rules about job restoration after FMLA leave ends?

Employee Takes FMLA Leave to Recover From Stroke

Kristina Kelley was working as a television producer when she had a stroke. Her employer, Jewish Voice Ministries International, granted her request for FMLA leave.

Kelley alleges that while she was on leave, she was “bombarded” with work-related questions from co-workers and vendors. She says they contacted her at all hours with urgent requests, adding that several calls with a particular co-worker lasted for hours.

The employer strongly disputed these assertions, saying that Kelley performed only minor tasks while she was out.

Kelley returned to work when her leave was up – but not on a full-time basis. Instead, she initially returned on a remote, part-time basis under her disability insurance provider’s “work incentive program.”

She says the employer agreed to the part-time arrangement, and that she made it very clear that she would have returned to her full-time post if it needed her to do so.

Instead, the employer told her about a month after her return that it had revised her job description and was designating her as an “inactive” employee. It also informed her that she might be considered for the newly revised position or another suitable position if she was released to work on a full-time basis.

About three months later, it terminated her employment.

Lawsuit Alleges Retaliation, Interference

Kelley sued under the FMLA, asserting claims of unlawful retaliation and interference. She said the employer terminated her employment because she complained about the conversion of her old position – and that it interfered with her FMLA rights by making her work while on leave and eliminating her job after she exercised her rights under the law.

The employer filed a motion for summary judgment. It said it legally declined to reinstate Kelley to her job because she was never medically cleared to return to full-time work.

The court said this would be a winning argument if it was undisputed that Kelley could not return to her former job. But the problem for the employer was that Kelley said she would have returned to the full-time job if needed — and that she returned on a part-time basis only because that was the agreement the employer made with her.

Factual Disputes Bar Summary Judgment

The employer also argued that even if Kelley had been cleared to return to work on a full-time basis, it had a financial need to revise her job duties.

But on this argument, there was evidence that the employer only began spending more money on outside vendors after Kelley went on leave.

For these reasons, the court denied the employer’s request for summary judgment on Kelley’s claims of retaliation under the FMLA.

It reached the same result on her interference allegations.

The parties highly disputed how much work Kelly did while she was on leave, it said. For that reason, the employer could not dispose of the FMLA interference claim via summary judgment.

FMLA Leave: How Much Contact is Too Much?

Employees who take FMLA leave are entitled to use that leave without being unduly burdened by work-related duties.

At the same time, court rulings have shown that they do not need to be entirely left alone. So how much contact with an employee on FMLA leave is too much?

Courts have held that minor requests, such as a request for a password or previously prepared report, fall into the category of de minimis work and do not violate the law.

As the court’s ruling points out, “there is no bright-line test for determining what amount of work is considered de minimis.”

But there is a line that cannot be crossed, for example – as Kelley asserts – when the employee is regularly bombarded with requests to perform urgent work-related tasks.

It’s a question of degree. But the line can easily get blurry, and the safest route for employers to take is to completely relieve employees from performing work-related tasks while they are on FMLA leave.

What About Job Restoration Rights?

The facts of this case also raise another important FMLA question: What are the rules about job reinstatement after leave ends?

In this case, one of the employer’s arguments reflects one of those rules: If the employee can no longer do the job, they are not entitled to be reinstated.

The employer said it did not give Kelley her job back because she was never medically cleared to go back to it.

But Kelley created a fact dispute on that issue and avoided summary judgment.

If an employer wants to deny reinstatement because an employee can no longer do the job, it must remember that the Americans with Disabilities Act may require job accommodations to help the employee perform their duties.

This is an especially important point to keep in mind in cases where the medical condition that precipitated the need for FMLA leave results in a newly existing disability for the employee under the ADA. In other words, there are cases where there was no ADA disability to accommodate before the FMLA leave began – but there is now.

4 Examples When Reinstatement is Not Required

Here are a few other rules relating to reinstatement following FMLA leave, as outlined in the relevant implementing FMLA regulation:

• An employee is not entitled to be restored to a job that is eliminated while they are on FMLA leave, as long as the job would have been eliminated if they did not take the leave. The statute does not give employees who take FMLA leave more rights than they have if they do not.
• Similarly, if a shift is eliminated or overtime availability is decreased while an employee is on FMLA leave, they are not entitled to return to that shift or those overtime hours upon restoration.
• If the employee was hired for a specific term or project that ends while they are on FMLA leave, they have no right to restoration.
• If it is determined that the FMLA leave was fraudulently obtained, there is no right to reinstatement.

Remember: The right to job restoration after FMLA leave is not absolute. However, the regulations put the burden on the employer to show that an employee who is denied reinstatement after FMLA leave would not otherwise have been employed when reinstatement was sought.

Kelley v. Jewish Voice Ministries Int’l, No. CV-23-00353-PHX-SPL (D. Ariz. 10/4/24).