You can terminate that employee who is off for a work injury…….but, based on this new 6th Circuit Court case, don’t forget that there are implications outside of workers’ compensation/FMLA/ADA issues

In Stein v. Atlas Industries, 2018 WL 1719097 (6^th Cir. April 9, 2018) the 6^th District considered an FMLA/ERISA action brought by an employee who was terminated after failing to show up for work after the physician treating him for a work-related injury released him to light-duty.

Stein tore his meniscus at work. After recovering from surgery, he was given a release slip from the doctor’s office that released him to light duty work. Stein gave the release to the workers’ compensation office at his employer, Atlas Industries. The doctor’s office notified Atlas that Stein could return to light duty the following Monday. Stein, however, thought he was on leave for several more weeks, as he still had FMLA leave available to him.

Monday came and went, and Atlas received no word from Stein. Atlas still heard nothing from Stein on Tuesday or Wednesday, and fired him on Thursday based upon company policy that employees who missed three workdays without notification were subject to automatic termination without exceptions.

Stein sued, claiming both FMLA interference and FMLA retaliation, along with a violation of the Employee Retirement Income Security Act. The district court granted Atlas summary judgment, and Stein appealed.

The Circuit Court affirmed summary judgment based on the FMLA interference claim, noting that:

an employee must “comply with [his] employer’s usual and customary notice and procedural requirements,” including internal call-in policies. 29 C.F.R. § 825.302(d); see Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 615 (6th Cir. 2013). And where an employee fails to do so, the employer is within its rights to terminate him—even if the days he failed to call in were otherwise FMLA-protected.

The Circuit Court conceded that that an employer may not require that an employee return to work once cleared for light duty if the employee has unexhausted FMLA leave. However, the Court noted that:

The FMLA does not, however, prohibit employers from requiring that employees call in and provide notice about their intent to continue FMLA leave following their release to light-duty work….. Had Stein contacted Atlas to say that he was using his remaining two weeks of FMLA leave and the company subsequently fired him under the attendance policy, Stein would have a claim. But that is not what happened. Atlas’s policy required Stein either to return to work or call in and report his intentions, and Stein did neither. So the light-duty regulations do not protect him.

The Court also rejected Stein’s argument Atlas violated the FMLA regulations under which an employer cannot fire an employee who fails to provide notice due to “unusual circumstances.” 29 C.F.R. § 825.302(d). Stein claimed that he had no idea that he was released for light-duty work, and that Atlas’s handbook did not require him to call in. The 6^th Circuit Court did not agree that these constituted “unusual circumstances” under the FMLA definition.

Lastly, the Court rejected Stein’s argument that Atlas violated the FMLA retaliation provisions, noting that Stein was not fired right after he sought FMLA leave. Rather, the termination did not occur until after Stein had already been allowed 10 weeks of leave.

HOWEVER-AND THIS IS WHY YOU NEED TO THINK TWICE BEFORE ISSUING THAT TERMINATION NOTICE, the 6^th District allowed Stein’s action for retaliation and interference under ERISA to go forward. The court noted that Stein had a son who suffered from a rare neurological condition and for whom the company had spent over $500,000 in medical expenses the year before Stein was fired. The Court noted that,

Both before and after Stein’s firing, Atlas publicly expressed its worry about “skyrocket[ing]” health-care costs in a series of employee notices. R. 66-11, Pg. ID 1927-32…. While [Stein’s son] was hospitalized, Stein says that Atlas’s vice-president of operations twice told him that he hoped [he] would be released soon—because his care was getting expensive for the company.

What’s the moral of this story? Dot your i’s and cross your t’s if you intend to terminate a no call/no show employee who is off for a work-related injury (and don’t forget about a possible workers’ compensation retaliation action).  And also don’t forget that there might be other issues lurking out there as well.