The FMLA Problem When an Accommodation is Gone in the Wink of an Eye

Typically, we write about telecommuting or work-from-home arrangements as a potential reasonable accommodation under the Americans with Disabilities Act. But the Seventh Circuit recently demonstrated why employers need to be careful with such arrangements even in the Family and Medical Leave Act (FMLA) context in Wink v. Miller Compressing Company.

In Wink, the employee had an autistic son for whom she was certified for FMLA intermittent leave to attend medical appointments and therapy. After the employee’s son was expelled from his day care, the company and employee agreed to an arrangement where she could work from home and report any time needed to care for the son as FMLA leave.

Several months after this arrangement was put into practice, the company decided that no employees would be allowed to work from home. At the same time that the company required the employee at issue to return to the office full-time the following week, a human resources representative falsely told the employee that the FMLA law covers leave for doctors’ appointments and therapy only. Because the employee could not find care for her autistic child, she remained home and was terminated by the employer.

As for the FMLA, the employee brought claims that the employer interfered with her right to leave and retaliated against her for exercising those rights. The Seventh Circuit upheld the jury’s verdict for the employee on the retaliation claim, reasoning:

As she was a valued and experienced employee who had worked for the company at home two days a week since February without the company’s complaining, the company had no compelling reason to fire her. Maybe, because of its financial troubles, it would have had to lower her wage, on the plausible supposition that an employee is likely to do less work for her employer at home than in the office – in Wink’s case if only because her child might take more than the allotted time (two hours a day) to be cared for by her. But that is not argued here.

In sum, the lack of compelling reason to change the agreed arrangement and the false line regarding FMLA leave rights doomed the employer.

(Note for audience members who are litigators, this case is also a worthwhile read as it relates to the award of attorney’s fees.)

What is the lesson from this case? Anytime an individual is exercising a right that is protected by law, careful attention needs to be given when making any changes to the terms and conditions of employment. An employer should be able to identify a legitimate, nondiscriminatory reason for its decision. Any change in terms and conditions that cannot be supported with a good reason is potentially open to a claim for retaliation related to the protected activity. In this case, the employer’s failure to present a compelling reason allowed for an inference of retaliation. The misinformation the human resources representative provided regarding FMLA leave rights was likely the final chip that helped the jury to conclude there was an unlawful motivation at issue.