Labor and Employment Law Weekly Update

07 June 2010 Publication
Author(s): Daniel A. Kaplan

Legal News: Employment Law Update

Personally Summoned to the Courthouse in an FMLA Lawsuit

Are individual supervisors personally liable for violations of the FMLA? While some courts have disagreed, the majority of federal courts that have considered this issue have held that individual supervisors may be personally liable for FMLA violations. Earlier this year, a federal court in Pennsylvania (Narodetsky v. Cardone Industries, Inc.) joined the growing number of courts that have upheld personal liability for supervisors under the FMLA.

The employee in the case claimed he was fired for requesting FMLA leave. He had sustained a leg injury that required surgery, and he asked for the leave. According to the employee, the next day, the employer searched the employee’s computer. The employee was called into a meeting with the plant manager, the director of human resources, and a human resources representative and was informed that he would be terminated based upon an e-mail he had sent. The employee claimed the employer had searched his computer in order to find a reason to terminate him so it would not have to grant him FMLA leave. He sued both the employer and the individual managers who had made the decision to terminate him.

The employer moved to dismiss the case without trial, arguing that individual managers could not be personally liable under the FMLA, but the federal court disagreed. The court considered the language of the FMLA itself, which defined an “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” The court also relied upon the regulations interpreting the FMLA, which state “individuals such as corporate officers ‘acting in the interest of an employer’ are individually liable for any violations of the requirements of FMLA.” Finally, the court observed that other federal courts have found individual liability for supervisors under the FMLA. The court concluded that the individual managers could be individually liable under the FMLA, and the case should proceed to trial.

It should be noted that not all courts that have considered the issue have reached the same conclusion. At least two federal district courts — one in Tennessee and one in West Virginia — have held that individual managers and supervisors are not individually liable under the FMLA. Nevertheless, those courts are in the minority and their holdings appear to be contrary to the FMLA regulation on this issue. In contrast, the Narodetsky decision is the latest in a growing majority of decisions that have found individual liability under the FMLA. Given this, it is important that employers be aware of how courts treat individual FMLA liability in the jurisdictions in which they do business and be prepared, if necessary, to deal with claims against individual managers and supervisors.

Do You Have a 100 Percent Healed Policy? Does Such a Policy Violate the ADAAA?

A 100 percent healed policy is one in which an employee is not permitted to return to work from a work-related injury until he or she is able to provide the employer with a “full release” from the treating (or independent) physician. This type of policy was recently challenged by a former employee, Powers v. USF Holland, Inc., (N.D. Ind. May 13, 2010), as a per se violation of the Americans with Disabilities Act Amendments Act (ADAAA).

The employee, Keith Powers, was a truck driver for USF Holland. After a few years of employment as a truck driver, Mr. Powers went over a particularly rough patch of road and injured his back. He was out of work with a workers’ compensation injury for approximately five months. When he returned, he found that his regular truck driver duties (which included forklift operation for loading and unloading activities) seemed to worsen his back pain. Accordingly, he asked for a transfer to a position that appeared to require less work that would compromise his back condition. USF Holland refused, citing its policy that he could not return to work unless he was free from all restrictions.

Mr. Powers sued USF Holland and alleged that the 100 percent healed policy was a per se violation of the ADAAA. The trial court originally agreed with Mr. Powers, but on reconsideration dismissed the claim because Mr. Powers could not show that he was, in fact, disabled. (At the time of the lawsuit, he was working for his father’s business as an “all-purpose employee,” which he admitted was more physically demanding than his prior employment with USF Holland.) The court reasoned that since the ADAAA did not require an employer to provide an accommodation to a person that is not otherwise disabled under the Act, and since Mr. Powers could not establish that he was otherwise disabled, then even if USF Holland regarded Mr. Powers as disabled because he had not been released without restrictions, no accommodation (such as forbearance from enforcing the 100 percent healed policy) was required.

USF Holland was able to escape liability in this case because Mr. Powers was determined not to be disabled; however, the lesson learned from the case is that employers need to understand that adherence to a 100 percent healed policy entails some very significant legal risk. If an employee is injured (either at work or otherwise) and is not able to return to work with a full release, it is still incumbent upon the employer to evaluate the restrictions and engage in the interactive process with the employee to determine whether some form of accommodation is necessary. A 100 percent healed policy should not stand in the way of such an interactive process or analysis of accommodation, especially if the employee is truly disabled.

The time when a blanket, black-and-white policy similar to a 100 percent healed policy can eliminate consideration of accommodations for employees is long gone. Even before the ADAAA was implemented in January 2009, there was a requirement that employers engage in the interactive process with their employees to evaluate restrictions and limitations caused by disabilities. 

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or any of the following individuals:


Scott Inciardi
San Francisco, California

Dan Kaplan
Madison, Wisconsin

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