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Oregon Federal Court rules on employee discharge rule

May 1, 2009

Oregon Federal Court Rules That an Employee Who Indicates Need for Medical Leave is Not Automatically Protected from Discharge
Barran Liebman LLP
Electronic Alert

In a victory for employers, the U.S. District Court for the District of Oregon ruled in Lawson v. Walgreen Company that an employee is not protected from discharge simply because she has expressed the intent to take leave under state or federal family leave laws.  After suffering a knee injury, the plaintiff, a store manager, informed her district manager that she would soon require nearly six months away from work to recuperate from surgery. Because the plaintiff’s proposed leave coincided with the holiday season (the store’s busiest time), and because her doctor concluded that the surgery could be safely delayed, the plaintiff decided to postpone the procedure.

However, before the plaintiff scheduled or underwent her surgery or began any leave, the company terminated her based on three instances in which she violated the company’s payroll policies. At the time of her termination, the plaintiff had her employer’s consent to take medical leave for her knee surgery. The plaintiff sued under the federal Family and Medical Leave Act (FMLA) and the Oregon Family Leave Act (OFLA), arguing that the company improperly interfered with her right to take medical leave when it terminated her before she could take leave for her surgery.

Both FMLA and OFLA prohibit employers from retaliating against employees because they exercised medical leave rights. However, both laws also make clear that employees who request medical leave are not entitled to greater rights than employees who do not. The court granted summary judgment to the employer, dismissing the plaintiff’s claims and concluding that she had presented no evidence that the company terminated her because she requested medical leave. To the contrary, the court found that the plaintiff’s termination was because of violations of company payroll policies and that the plaintiff’s notice of intent to take medical leave did not prevent her employer from terminating her. Since FMLA and OFLA only entitle an employee to the same rights as other employees, the plaintiff was not protected from discharge or other discipline simply because she indicated a desire to take medical leave.

Importantly, Walgreens investigated the plaintiff’s misconduct and the investigators had no knowledge of the plaintiff’s intent to take medical leave in the near future. While the individual who decided to terminate the plaintiff was aware of her intent to take leave, the evidence showed that he based his decision on the results of the investigation and did not consider her need for leave. So while this case proves that an employee needing future leave does not have a “get out of jail free card,” employers should always proceed cautiously in disciplining or terminating any employee, especially one who has expressed a need for protected leave. The keys to this messy termination were: 1) an independent investigation, 2) an unbiased decision-maker (even though he had knowledge of the leave request), and 3) and careful documentation.

### Electronic Alerts are written by Barran Liebman LLP attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please call Traci Hopfe at 503-276-2115 or email [email protected] Copyright © 2009 by Barran Liebman LLP

  
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justme May 1, 2009

Clearly this case is one where the employee is trying to abuse the system. Glad to see the courts stepped up.

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