Hearst v. Progressive Foam Technologies, Inc, et al., No.10-1253 (8th Cir. June 8, 2011)

In an opinion issued yesterday, the Court of Appeals for the Eighth Circuit considered whether an employer violated the FMLA when it fired an employee who did not return from FMLA leave after being out on leave for more than 12 weeks.  Jason Hearst was hired by Progressive Foam Technologies on March 15, 2006.  He was injured in a car accident and requested a medical leave of absence to start on January 3, 2007, to end on February 5th, which Progressive granted.  Progressive mistakenly designated the leave as FMLA leave.  (Hearst had only been an employee for about 10 months, not the required 12 months.)

Hearst’s condition did not improve as originally expected and so he did not return to work as planned.  Eventually Progressive was informed by one of Hearst’s doctors that he would not be able to return to work until April 10, 2007.  On March 16, 2007, Progressive informed Hearst by letter that his 12 weeks of leave under the FMLA would end on March 28th, but that he would be given an additional 30 days of leave.  Progressive also asked Hearst to provide it with information on when he would be able to return to work, in accordance with its FMLA leave policy. 

On May 1, 2007, having heard nothing from Hearst and being past the last day of Hearst’s additional leave, Progressive fired Hearst for “job abandonment.”  After firing Hearst, Progressive heard from his doctor on May 15, 2007, that Hearst would not be able to return to work for another two months.  It heard from Hearst’s doctor again in June that Hearst could not return to work for 3 months.  

Hearst sued Progressive, claiming violations of the FMLA and COBRA.  He claimed he was entitled to FMLA leave until mid-June, 12 weeks after the one year anniversary of the start of his employment with Progressive.   He also claimed that Progressive had failed to notify him of his COBRA rights.

The Court of Appeals decided not to consider, as the District Court had done, whether Progressive could count the weeks of leave Hearst took before his one year anniversary date as FMLA leave once he became eligible for FMLA leave.  Instead, it held that even if Hearst was entitled to 12 weeks of FMLA leave after his one year anniversary, he had failed to show he would have returned to work in mid-June.  It also affirmed the District Court’s grant of summary judgment as to Hearst’s COBRA claim because it was undisputed that Progressive had sent Hearst a COBRA notice via a method reasonably calculated to reach him, i.e., by mailing it to him.

One has to wonder what would have happened if Progressive had not mistakenly designated Hearst’s initial leave as FMLA leave.  Could they have denied him any unpaid leave? Assuming Hearst did not have any paid leave entitlement and Progressive did not have a policy of allowing employees unpaid leave even if they were not FMLA eligible, could Progressive simply have terminated his employment when Hearst’s need for leave arose?  The short answer is no, not at least without doing something more.  The longer answer was discussed yesterday at a meeting of the Commissioners of the EEOC  which considered leave as a reasonable accommodation.  (It is not clear from the facts in the decision whether Hearst would be considered disabled under the ADA or even whether he included such a claim in his original lawsuit.  However, an employer faced with the same situation should consider the possibility that the ADA applies.)