It’s Called the Bermuda Triangle of Leave for a Reason: It’s Got Three Parts.

Darrell VanDeusen
Darrell VanDeusen

I am in the process of updating my FMLA/Wage & Hour treatise published by LEXIS/NEXIS (gratuitous self-promotion).  All this means is that I have been reading lots of FMLA cases; my blogs this week will be a teaser for what’s new in the book. 

As you likely know, the challenges in applying the FMLA, ADA and workers’ compensation law when an employee needs time off from work are, at times, mind-boggling.  The interplay of these statutes in HR and legal circles is sometimes referred to as the “Bermuda Triangle” of leave laws. 

That’s cute (sort of), but the observation is essential:  these are three separate laws and they need to be treated as such. It should be self-evident that each law has its own requirements and obligations.  But employers sometimes make the mistake of thinking that compliance with one of these laws will absolve them of complying with another.  And they would be wrong.  This story focuses on two of those three legs.

In Ramji v. Hosp. Housekeeping Sys., LLC, 992 F.3d 1233 (11th Cir. 2021) the Eleventh Circuit recently returned the case to the district court for trial on the plaintiff’s FMLA claims related to her termination.  The employer focused on the workers’ compensation nature of the plaintiff’s absence from work but it took a “wait and see” approach to the notice requirements of the FMLA.  When sued, the employer tried to use workers’ compensation law as a shield to protect itself from its FMLA missteps.  The appellate court would have none of it.

Ramji was a housekeeper at a medical facility in Georgia, employed through the contractor Hospital Housekeeping Systems (HHS).  She fell and injured her knee at work.  Since she worked at a hospital, she immediately got an x-ray and a note from a doctor which first kept her off work for four days.

HHS handled Ramji’s injury as a workers’ compensation claim, which of course it was.  Ramji needed to take eleven days off between the date of her accident. HHS required her to use sick leave.  She then was able to return to work in a light-duty position – something every workers’ comp insurer wants to see happen.  But HHS did not provide Ramji with any notice or information about her eligibility for leave and her rights under the FMLA.

After a few weeks (during which she had doctor and PT visits), Ramji was released to work without restrictions by the workers’ comp doctor.  On a Friday, HHS made her take an “essential functions” test, which she failed after repeatedly complaining about knee pain when she was required to do deep knee squats and other physically challenging tasks.

When Ramji came to work the following Monday, she was issued written warnings for past incidents – including the accident that resulted in her knee injury.  She was then fired for failing the essential-functions test.  Ramji asked if she could use her unused sick and vacation leave instead until she was able to work.  She was told no.

Ramji sued.  The parties filed cross motions for summary judgment.  A magistrate judge issued a report recommending they be denied because certain questions of fact needed to be decided by a jury.  The parties filed objections and, ultimately, the district court rejected the report and granted summary judgment for HHS.  The district court concluded that Ramji was not entitled to FMLA benefits because the workers’ comp doc had cleared her at “maximum medical improvement with a zero-percent impairment rating.”

Ramji appealed. The Eleventh Circuit vacated the decision and remanded the case for trial. There was no question Ramji was entitled to FMLA benefits. She was out initially for four days, which then stretched beyond that and was seen repeatedly by health care providers for her serious health condition.  Yet, HHS never gave her notice of her FMLA rights or the eligibility notice required when someone is cannot perform the essential functions of their job due to a serious health condition. 

HHS attempted to defend its actions because (1) “it handled Ramji’s on-the-job injury through workers’ compensation;” and (2) FMLA leave would have contradicted the workers’ comp doctor’s assessment that Ramji could return to light duty work.  The employer wanted to “wait and see” what the doctor said before offering FMLA.  When the doctor said Ramji was able to work (using the workers’ comp standard), that was good enough to absolve HHS of its FMLA obligations. The appellate court had, putting it mildly, significant problems with these arguments.

First, HHS could not exempt itself from its FMLA notice obligations by offering Ramji workers’ compensation.  Section 825.702(d)(2) of the DOL regulations provides that “the workers’ compensation absence and FMLA leave may run concurrently.” Second, Ramji’s willingness at first to return on a light-duty schedule did not absolve HHS of its obligations.  The FMLA regulations, said the court, “unambiguously prohibit precisely this employer conduct.”  See 29 C.F.R. § 825.702(d)(1) and § 825.702(d)(2) (“If the employer offers [a light-duty] position, the employee is permitted but not required to accept the position.”) There was no question Ramji was entitled to FMLA leave. 

The court sent Ramji’s claim back to the district court for trial.  Here, HHS’s wait and see approach and failing to give Ramji the required notices about her rights under the FMLA were exceptional miscalculations.  To then seek safe harbor in the workers’ comp world could not protect the employer from a trial on her FMLA interference claim.





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