In August 2012, three different Courts of Appeals issued important decisions regarding claims under the Family Medical Leave Act of 1993 ("FMLA") brought by employees who had been terminated for excessive absenteeism. These decisions provide good lessons for employers, many of whom struggle with balancing attendance problems with FMLA rights.

In Donnelly v. Greenburgh Central Sch. Dist., 2012 WL 3240409 (2d Cir. Aug. 10, 2012), the court found that there were material questions of fact regarding whether a school district refused to grant tenure to a teacher due to his protected FMLA absences. Donnelly, a school teacher, with a two-year history of excellent performance, became ill and had surgery during the third year of his three-year probationary contract. The school district denied Donnelly tenure, and its third evaluation of him contained sharp criticism of his absenteeism. Donnelly contested the evaluation, complaining that he "was being mistreated for taking leave for surgery."

The court did not express an opinion on the merits of Donnelly's FMLA retaliation claim, but it nonetheless held that the following evidence raised a material question of fact regarding Donnelly's claim that the school district unlawfully denied him tenure because he took a protected FMLA leave: (1) the "very close" temporal proximity between Donnelly's leave and the school district's decision to deny him tenure, (2) the shift from very positive reviews before his leave to a negative review after his leave, and (3) the review expressly penalized Donnelly for excessive absences, which appeared to include absences protected by the FMLA. This decision serves as a reminder that, when making and documenting employment decisions based on absenteeism, the record should demonstrate that the decision is not based, in any part, on the employees' protected leaves of absence.

In Scruggs v. Carrier Corp., 2012 WL 3140113 (7th Cir. Aug. 3, 2012), the court held that the employer adequately demonstrated that it lawfully terminated the employee because it reasonably believed he had misused FMLA leave. Scruggs worked for a manufacturing plant that was seeking "to combat employee absenteeism and suspected FMLA abuse." The plant hired a surveillance company to track 35 employees who were either suspected of misusing leave or had a high number of unexcused absences.

On the first two times that the surveillance company tracked Scruggs, it did not find any evidence of abuse. On the third occasion, however, it found otherwise. Scruggs had requested FMLA leave so that he could take his sick mother to the doctor. The surveillance company, however, did not observe Scruggs leave his house that day (other than to retrieve mail) and further reported that both of his vehicles remained in the driveway all day. Scruggs claimed that he left through the back door and that his brother took him to visit their mother, but his records were internally inconsistent. The Plant terminated Scruggs for misusing his FMLA leave.

Scruggs filed two FMLA claims: (1) an interference claim and (2) a retaliation claim. The district court granted summary judgment in favor of the plant on both claims. Although the court found "there was a question of fact as to whether Scruggs actually used his FMLA leave for an approved purpose, it was undisputed that [the plant] had an 'honest suspicion' that Scruggs misused his FMLA leave."

The Court of Appeals affirmed. The court reasoned that, to be protected, an employee must take leave for an FMLA-protected reason. Consequently, if the employer can show that it had an honest suspicion that the employee was not using FMLA for its intended purpose, then the absence is not protected and the employee can be disciplined.

Here, the court concluded that, based on the foregoing evidence, the plant lawfully terminated Scruggs because it honestly suspected that he was abusing his FMLA leave. Indeed, the court noted that, "[a]lthough [the plant] could have conducted a more thorough investigation, as Scruggs fervently argues, it was not required to do so." This case demonstrates that employers can discipline employees who misuse FMLA leave, but the employer needs to be able to gather sufficient facts to show that, at a minimum, it has an honest belief that the employee is using FMLA leave for some other purpose.

Finally, in Lichtenstein v. UPMC, 2012 WL 3140350 (3d Cir. Aug. 3, 2012), the court ruled that, because an employee need not expressly request FMLA leave to be protected, there were material questions of fact regarding whether the employer decided to terminate the employee based on a protected absence. From October 2007 to December 2007, Lichtenstein was tardy six times and absent twice and requested multiple changes to her schedule after the deadline for making such requests had passed. Two co-workers complained about Lichtenstein before December 1, 2007, when she was scheduled to work a 16-hour shift, because they were aware that she planned to call off. Lichtenstein's supervisor confronted her about her co-workers' complaints, and Lichtenstein told her supervisor that she hoped to take off for a group project for school. Although her supervisor denied the request, Lichtenstein still took off, calling in sick. Additionally, on December 30th, Lichtenstein arrived for her shift several hours late and departed several hours early.

The employer terminated Lichtenstein on January 10, 2010 after her supervisor had returned from vacation. In the ensuing FMLA lawsuit, Lichtenstein claimed that the employer unlawfully terminated her in violation of the FMLA because, in early January, she had informed the employer that she needed time off to assist her mother, who had been taken to the emergency room. Nonetheless, the employer argued, and the district court found, that the January absences were not covered by the FMLA because Lichtenstein had not adequately put the employer on notice that the leave qualified under the FMLA and that the employer lawfully terminated Lichtenstein for her December 30th late report and early quit. The Court of Appeals reversed, finding that there were material questions of disputed fact.

First, the court determined that there were questions of material fact as to whether Lichtenstein's January absences were protected by the FMLA, reasoning that, "the 'critical test' is not whether the employee gave every necessary detail to determine if the FMLA applies, but 'how the information conveyed to the employer is reasonably interpreted.'" The court added that, "The question is not whether the information conveyed to the employer necessarily rules out non-FMLA scenarios. The question is whether the information allows an employer to reasonably determine whether FMLA may apply." Using this standard, the court concluded that the information Lichtenstein provided – that she was in the emergency room with her mother – created a material question of fact as to whether Lichtenstein provided sufficient notice to render her January absence protected by the FMLA.

Second, the court observed that there were disputed issues of material fact regarding whether the employer considered the January absences when it decided to terminate her. Among other things, the court noted that the employer's EEOC position included the early January absence among the reasons for the termination.

This decision demonstrates the importance of (1) securing sufficient information to clearly determine whether an employee's request for time off is protected by the FMLA and (2) the critical role that that EEOC position statements can play later in a case.