Job Assignment Leads to Panic and Anxiety
A long-term care employer fired a nurse for “patient abandonment” after the nurse went to the Human Resources Department in a state of panic because she was going to be assigned to a unit for which she had not been trained. Her supervisor had told her that she had “no choice” but to work in the unit and that if she didn’t she would be fired for patient abandonment and that a complaint would be filed with the Nursing Board, which could result in the loss of her nursing license. Hearing that, the nurse went immediately to Human Resources where she began crying and shaking, and at one point she requested an ambulance. Because of her obvious distress, the HR director told her to go home and that they would work something out the next day. She did go home and saw her doctor the next morning. She then presented the doctor’s note to HR advising that she should take the rest of the week off. The HR department gave her FMLA forms, which she returned two days later. So, this all seems pretty straight forward, but there was a hitch that ultimately puts the employer in front of a jury.
The Hitch Was “You’re Fired”
Yes, even though the HR department asked her to go home and take care of herself and then gave her FMLA forms the next day, the hitch was that nurse’s department manager had called her at home on the day she left to inform her that she was terminated for “walking off the job.” The employer then later filed a complaint with the Board of Nursing alleging that the nurse had “refused a work assignment and walked out.”
Litigation Follows
Not surprisingly, the nurse filed a lawsuit alleging interference with her rights under the FMLA. The employer defended, claiming that since she had already been terminated at the time she was requesting FMLA leave, she was not protected and that in any event her termination was not related to her FMLA request or her mental condition. The district court agreed with the employer and dismissed her complaint. But that was not to last. The nurse appealed and won the chance to take her story to the jury. The appeals court reasoned that when an employee gives sufficient information to put the employer on notice that an absence may be covered by the FMLA, then that’s a question for the jury. In this case, the nurse’s obvious distress was so apparent that the jury could reasonably find that the employer was put on notice of the need for the FMLA leave. On top of that, she actually returned the FMLA paperwork within two days, which would have been timely under the FMLA in any event.
What We Have Here Is a Failure to Communicate
Now there may actually be something to the employer’s arguments. It appears that the nurse’s department manager was not in communication with HR and maybe the decision to terminate was made before the panic attack in the HR department. It may be that the department manager never actually observed the outward signs of panic and may have believed that the nurse just didn’t want to work in the assigned unit. That happens. But those arguments depend on the facts as they are explained by the witnesses in front of the jury. As the court said, an employer who precipitously fires an employee who might actually have a serious health condition bears the risk that that diagnosis will be confirmed.
Lessons for Employers
So ultimately we don’t yet know who will win this one, but we can take away some lessons:
- If an employee demonstrates behaviors that could be a “serious health condition,” be careful; don’t act precipitously but make a final decision once the FMLA paperwork is in;
- Consider a suspension or a temporary leave while the facts are determined;
- Make sure that there are open communications among departments and Human Resources when complex issues and facts arise; and
- Train managers and supervisors to recognize when behaviors can give rise to rights under the FMLA even when no formal request for FMLA has been made.
Reference: Clinkscale v. St. Therese of New Hope, (8th Cir. November 13, 2012).
Please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney should you have any questions.
