Altered Schedule May Constitute Adverse Employment Action for FMLA Purposes

One of the more common issues I have encountered in talking to people about their Family and Medical Leave Act (FMLA) rights is whether their employer can return them to the same job but with a different shift or work hours following their having taken a FMLA leave. Generally the answer to that question is yes, although there are a variety of situations where that answer is not so straightforward. Davis v. State is one of those situations.

Susan Davis worked for the State of Oregon, initially as a Habilitative Therapy Technician and later as a Mental Health Therapy Technician, assisting individuals with their activities of daily living. Ms. Davis alleged that she was attacked by one of her patients, an attack that landed her in the emergency room with bruises and an apparent broken nose. Following the incident, Ms. Davis took an approved FMLA leave from her job. Ms. Davis returned to work with the understanding that she would not be forced to work with her alleged attacker. After suffering an anxiety attack that led to a second approved FMLA leave, Ms. Davis again returned to work with the understanding that she would not be reassigned to work in close proximity to the alleged attacker. Ms. Davis claims that four days later she was assigned to work with her alleged attacker and was informed she would be required to follow the normal staffing assignments in the future which included working with her alleged attacker. Ms. Davis, who feared working with the individual who she claimed had attacked her, was ultimately allowed to transfer to another job at her request.

Ms. Davis’ case against the State of Oregon contained several claims but this blog entry will focus solely on the FMLA claim. The State of Oregon sought to have Ms. Davis’ FMLA claim dismissed on the basis that she did not suffer an adverse employment action. Typically, employees must be able to establish that they suffered an adverse employment action, usually defined in economic terms such as a loss of income, in order to prove their FMLA rights have been violated. The State of Oregon claimed Ms. Davis was allowed to return to the same job she held prior to her FMLA leaves and was later transferred to another job at her own request, neither of which implicated her FMLA rights. In rejecting that argument, the United States District Court for the District of Oregon found that if a jury determines Ms. Davis had a scheduling agreement with the State of Oregon before her second FMLA leave that was altered upon her return, she might have a viable claim under the FMLA. Additionally, the court stated that Ms. Davis could argue she experienced a lateral transfer as the result of taking her FMLA leaves.

Although Ms. Davis’s situation is unusual given the involvement of alleged workplace violence, her case is noteworthy because it provides an example of a situation where restoring an employee to work a different schedule than they would have had they not taken an FMLA leave may, in fact, constitute a violation of the employee’s FMLA rights.