In plain English, the court in Capps v. Mondelez Global, LLC concluded that an employer can fire an employee whom it truly believes is misusing FMLA — even if the employer’s suspicion of FMLA fraud turns out to be wrong. That’s not FMLA retaliation.
Why? Because an FMLA retaliation claim requires that a plaintiff demonstrate that he was fired because he took FMLA leave. In other words, the plaintiff must show that the employer’s stated (legitimate) reason for firing him is pretextual. However, “the issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons it offers.”
But, what about an FMLA interference claim?
Ah yes. So glad you asked.
Unlike a retaliation claim, a plaintiff alleging FMLA interference does not have to show that the employer bore any animus. Rather, an interference claim only requires an employee to show that he was not only entitled to FMLA benefits but also that he was denied those benefits.
In the Capps case, the plaintiff was unable to show that Mondelez deprived him of any rights he had under the FMLA. That is, he got all of the FMLA leave he requested. (He was subsequently fired).
But that does beg the question, what happens if, while an employee is taking FMLA leave, the employer fires him because the employer honestly believes that the employee has engaged in FMLA fraud. Could that be FMLA interference? Unclear.
One other noteworthy takeaway from Capps v. Mondelez Global, LLC
The U.S. Equal Employment Opportunity Commission jumped into this case to file an amicus brief, in which it argued that a request for FMLA leave for one’s own serious health condition essentially serves as a request for a reasonable accommodation under the Americans with Disabilities Act.
Well, the Third Circuit did “recognize that a request for FMLA leave may qualify, under certain circumstances, as a request for a reasonable accommodation under the ADA.” However, since Mondelez gave Capps all the FMLA leave he requested, it accommodated him.
Ready, Fire, Aim?
Not so fast. Instead of just firing an employee whom you suspect has abused FMLA leave and waving the honest-belief, read this blog post first.
Also, get in the habit of treating an employee’s request for FMLA leave for the employee’s own serious health condition as a request for a reasonable accommodation under the ADA. That means not only providing the FMLA leave (if the employee is eligible), but also thinking about ways to accommodate the employee when the employee returns to work.