Refusing to Return Calls from Employees on Leave is a Risky Practice for Employers

A supervisor’s failure to return calls from an employee on family or medical leave may support a retaliation claim against an employer under the federal Family and Medical Leave Act (“FMLA”). Liability under such circumstances can exist, a federal court in Pennsylvania recently ruled, even if the employer has provided the employee with an appropriate amount of leave. Although from a distant locale and as yet untested by an appellate court, the decision from the court in Pennsylvania confirms that employers in the Golden State should strive to keep open the lines of communication with and to return calls from employees who are on family or medical leave – especially since there is so much overlap between the FMLA and the California Family Rights Act.

The employee in the Pennsylvania case, Hofferica v. St. Mary Medical Center, No. 10-6026 (E.D. Pa. Sept. 20, 2011), was a registered nurse who started working for the employer in June 2005. Her doctor diagnosed her with a disease that causes hearing loss, tinnitus, and vertigo in March 2008. Shortly after that diagnosis, the nurse applied for a year of intermittent medical leave, which the employer pre-approved. The nurse had to undergo a series of surgeries to treat her condition, which led her to take full-blown medical leave starting in September 2008. Her anticipated return-to-work date was November 6, 2008.

While on full-blown medical leave, the nurse (or sometimes her husband) called an assistant manager of the employer on a weekly basis to provide progress updates and news about her anticipated return date. The nurse alleged that the assistant manager failed to return a number of those calls. For example, when the nurse phoned on November 4, 2008, to explain that her doctor might delay her anticipated return date, the assistant manager did not return the call. The following day, upon learning that her physician had decided to postpone her return date by one week, the nurse again phoned the assistant manager to report that development and to request a one-week extension to her return date. Once again, the assistant manager declined to return the call.

The day before she was to return to work, the nurse received a letter from her employer stating that her employment had been terminated on November 7, 2008. The letter listed the nurse’s failure to return to work before her medical leave expired on November 6, 2008, as the reason for the termination. The nurse filed a lawsuit accusing the employer of interfering with her leave entitlement and retaliating against her for requesting such leave.

The federal court concluded that the employer had not interfered with the nurse’s leave entitlement because it gave her all the leave that it owed to her under the FMLA. At the same time, however, the court refused to dismiss the nurse’s retaliation claim. The court determined that the nurse had alleged “sufficient antagonism” to support such a claim, based upon the assistant manager’s failure to return her phone calls after the nurse commenced her medical leave. “While an employer’s failure to return an employee’s phone calls does not constitute overt antagonism,” the court explained, “it certainly suggests an antagonistic attitude toward the employee.” The court added that is particularly true “where —as here — such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee.”

Although employers must exercise caution when initiating calls to employees who are on family or medical leaves of absence, that does not mean employers should refrain from taking or returning calls placed by such employees. Indeed, it is vital to provide an open line of communication to employees on such leaves – not only when the employee’s return date is drawing near, but throughout the entire leave period. Doing so will help employers reduce their exposure to both interference and retaliation claims.