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August 30, 2023
In a recent opinion of the U.S. Court of Appeals for the Third Circuit (Third Circuit), the Court held that an employer is not liable for interference under the Family and Medical Leave Act (FMLA) when it asks an employee returning from a leave of absence to catch up on tasks that fell delinquent during his leave. See Drizos v. PNC Invs. LLC, No. 22-1736, 2023 U.S. App. LEXIS 20099 (3d Cir., Aug. 3, 2023) (non-precedential decision).
Some Background on the Law
The FMLA entitles eligible employees to take up to 12 weeks of job-protected leave to address their own serious medical condition, among other things. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. One right under the FMLA is an employee’s entitlement to be returned to the same position that the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
Some Background on the Case
In this case, Stephen Drizos worked as a financial advisor for PNC Investments LLC (PNC). He took an intermittent leave of absence under the FMLA to treat his alcoholism in February and March 2017. During this leave, Drizos continued to work and perform his normal functions as a financial advisor. He returned from leave to his financial advisor position with the same pay and benefits.
Drizos then took a continuous leave under the FMLA and PNC’s disability policies from late May to late August 2017. During this leave, he did not work. Again, he returned from leave to his financial advisor position with the same pay and benefits.
During Drizos’s continuous leave, approximately 70 of the managed accounts that he serviced had become delinquent. PNC asked Drizos to bring the accounts current and gave him several extensions to do so. Drizos did not ask for assistance with this task, but failed to complete it.
Sometime in May 2018, Drizos told his supervisor that he was planning to take another leave of absence to treat his alcoholism, but that he needed time to organize his affairs first.
In June 2018, Drizos’s manager issued a final written warning to him due to his failure to follow the company’s call-out procedures for absences in October 2017, and in February, April, May, and June 2018. Less than two weeks after issuance of the final written warning, Drizos was absent from work and failed to follow the call-out procedures. PNC terminated Drizos’s employment. At the time of his termination, Drizos had not finalized plans for a third leave of absence.
Drizos sued PNC, alleging, among other claims, that PNC interfered with his FMLA leave and retaliated against him for invoking his FMLA rights. The court dismissed Drizos’s claims before trial. Drizos appealed to the Third Circuit, which affirmed the lower court’s decision.
The Third Circuit’s Decision
With respect to his FMLA interference claim, Drizos argued that “PNC Investments allowed his work to accumulate while he was on leave and then required him to complete it immediately upon his return…[which] significantly increased his workload and altered his job duties.” See Drizos, 2023 U.S. App. LEXIS 20099, at *14-15. As a result, Drizos alleged that PNC did not return him to an “equivalent” position as compared to the one he had before his leave, as the FMLA requires.
The Third Circuit noted that “[t]he FMLA provides that an employer must reinstate an employee to an equivalent position after leave, not that their leave has no impact on their work. Asking Drizos to perform tasks that he traditionally performed but had accumulated in his absence, while receiving the same pay and in the same position and multiple extensions to complete this work, does not constitute interference under the FMLA.” Id, at *15-16. The Court further noted that, if PNC had transferred the accounts that Drizos serviced to other financial advisors during Drizos’s leave, it would have affected his pay substantially. Id. at *16.
Employer Takeaways
Be careful. You should make every effort to cover the workload of an employee on leave. Leaving the position uncovered could be viewed as retaliatory (and a bad business decision, too). However, requiring an employee, upon return from leave, to “catch up” on tasks that could not be covered adequately during the leave will not likely be deemed FMLA interference.
This newsletter is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
