Employers may be liable for firing an employee for seeking medical leave to which he is ineligible. On October 9, 2013, the United States Court for the Court of Appeals First Circuit, which hears appeals from the federal trial courts in New Hampshire and Massachusetts, affirmed the Massachusetts federal trial decision in McArdle v. Town of Dracut. The Family Medical Leave Act (FMLA) guarantees an eligible employee the right to take 12 weeks of unpaid leave because of, among other things, a serious medical condition that renders the employee unable to do his job. It also makes it unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA.
The McArdle case involved in part a claim for medical leave under the federal FMLA by Raymond McArdle; a middle school English teacher for Dracut. McArdle began working for the Town of Dracut as a school teacher in 1997. In 2007 McArdle’s life entered into a downward spiral when he entered into divorce proceedings with his wife and began drinking excessively, his house was being foreclosed on, he suffered depression, and he missed numerous days from school. Eventually he was fired for abandoning his job. He filed suit against the Town of Dracut claiming, among other things, the Town retaliated against him for asserting FMLA rights.
The trial court granted summary judgment for the Town which he appealed. The Court of Appeals agreed with the trial court. While one of the issues of the case was pretty much a mathematical question as to whether or not he worked the amount of the days necessary to be able to claim FMLA leave, the broader issue for employers in this case was whether a retaliation claim can be based on asking for a medical leave the employee is not entitled to under the FMLA. The Court noted that it could be convinced under the proper facts that an employee who is ineligible for FMLA can still bring a retaliation claim noting that there are many reasons why an employee will not know until inquiring whether he is eligible for a particular right available FMLA and that statute prohibits the employer from interfering both with the existence of the rights provided under the FMLA and with the attempt to exercise any such right irrespective of whether the attempt is successful. The Court noted that firing an employee for asking whether he is eligible for FMLA would also frustrate the purpose of that Act and deter employees from asking for FMLA rights. In this case, however, McArdle was fired for abandoning his job and the Court found no basis to bring any of the claims he had raised based upon the undisputed facts. Therefore, he was not entitled to go the jury with his claim.
For employers, however, it is important to note that even if an employee makes a request for FMLA and is incorrect in his understanding of his rights, retaliating against that employee would be prohibited under the FMLA. That does not mean that the employee is entitled to no adverse employment action taken against him. It is just that adverse employment action cannot be taken in retaliation for the employee asking for FMLA rights. For example, in the McArdle case, he was fired for abandoning his job after numerous absences and the Town of Dracut firing him for that reason was not retaliating against him for his exercise of what he could have believed was his FMLA rights. These issues can be complex and it is best when faced with it to contact the employer’s employment counsel to strategize how to best handle the circumstances.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].