Firing Employee for not Returning to Work not FMLA Interference

February 26, 2010 ( – A federal court has found an employer did not interfere with an employee's Family and Medical Leave Act (FMLA) leave when it terminated him for not returning to work when expected.

The U.S. District Court for the Eastern District of Arkansas first found that Jason Hearst became eligible for FMLA leave while he was already on leave and that the leave he had already taken when he became eligible counted towards his allowed 12 weeks under the FMLA. The court said that finding otherwise would violate the FMLA’s explicit requirement that nothing in it should be interpreted to discourage employers from creating more generous leave policies.

Since Hearst’s leave prior to his FMLA eligibility counted toward his FMLA leave, the court found his 12 weeks was exhausted over a month prior to his termination from Progressive Foam Technologies, Inc. The court said Hearst’s termination reason was not connected to him taking FMLA leave, but was due to a violation of Progressive’s leave policies, since Hearst failed to keep the employer notified of his status and failed to return to work on the last return to work date provided by his physician.

In addition, the court rejected Hearst’s claim that Progressive failed to notify him of his COBRA rights following his termination. The court said evidence from the U.S. Postal Service’s manifest that the COBRA notice was mailed to Hearst’s correct address two days following his termination creates a presumption of receipt, despite Hearst saying he did not receive it.

According to the court opinion, Hearst was hired by Progressive on March 15, 2006, and suffered a non-work related injury on December 3, 2006. Hearst requested leave from January 3, 2007 to February 5, 2007, and submitted a doctor’s statement saying he could not work for four weeks. At that time, Hearst signed a document acknowledging Progressive’s leave of absence policies, which stated in part that an employee’s “failure to return from a leave of absence on the agreed upon date without an approved extension will result in termination for job abandonment.”

In a letter dated February 21, 2007, Hearst’s doctor informed Progressive that Hearst had undergone surgery on February 6, 2007, and could return to work April 10, 2007. On March 16, 2007, Progressive informed Hearst that “as of 3/28/07 [his] 12 weeks of leave under the federal Family and Medical Leave Act will be exhausted,” but because of Hearst’s physician’s statement that he could not return to work until April 10, 2007, Progressive extended Hearst an additional thirty days leave — until April 27, 2007.

Progressive’s letter also requested that Hearst, in accordance with FMLA policy, inform Progressive of his status and a specific return-to-work date. Hearst’s physician again moved Hearst’s return-to-work date to May 1, 2007, but nothing in the record indicates that Hearst informed Progressive of his intent to return to work on a specific date.

Hearst did not show up for work on May 1, 2007, and Progressive terminated his employment on that date. Following his termination, on May 15, 2007, Hearst’s physician notified Progressive that Hearst would not be able to return to work until July 15, 2007.

Hearst filed his lawsuit against Progressive on December 3, 2008.

The case is Hearst v. Progressive Foam Technologies, Inc., 4:08-cv-04190-WRW, 01/12/2010.