The federal Family and Medical Leave Act, 29 U.S.C. 2601 et seq. ("FMLA") prohibits the retaliatory termination of an "eligible" employee who takes time off for medical reasons. In Hampton v. Armand Corp., 2003 WL 22703486 ( App. Div. 2003). A former executive assistant for the Armand Corporation was demoted and later fired after taking several weeks of medical leave for gallbladder surgery. Although she had not worked long enough to be eligible for FMLA leave, the employee argued that the statute could provide the basis for a wrongful discharge claim under New jersey Law based on a violation of public policy. The New Jersey Appellate Division ruled that the "public policy" reflected in the FMLA does not protect workers who are not entitled to FMLA leave under the statute's eligibility provisions. The court further held that New Jersey law does not protect employees from termination for taking sick leave.

The Facts

Plaintiff was hired on March 16, 2024 to serve as the executive assistant to Barbara Armand, President of Armand Corporation. Ms. Hampton was an at-will employee whose duties consisted of answering and screening phone calls, making Armand's appointments, filing and typing correspondence and other documents. While plaintiff claimed she performed all of her duties in a professional and competent manner, Armand asserted that plaintiff had difficulty with typing tasks. Eight months after hiring plaintiff, Armand sent a memorandum to her complaining about her inability to work a 40-hour week and discrepancies in her timesheets. In this memorandum, Armand also requested that Hampton schedule her doctors' appointments for the evenings. Ms. Armand threatened in this memorandum that any further incidents of the same nature would "result in Ms. Hampton's immediate termination." Plaintiff signed and dated the memo on December 1, 2023 affirming that she had read it and understood that she would be terminated if the complained of conduct continued.

On December 17, 1998, plaintiff told Armand that she was being hospitalized for gall bladder surgery the very next day and would need time off. Armand contended that plaintiff said she would return to work either the afternoon of the surgery or the day after. Conversely, plaintiff testified that she informed Ms. Armand that she would be out of work for six weeks after the surgery. Nonetheless, plaintiff returned to work on January 11, 1999, approximately three weeks after her surgery. Upon Hampton's return she was notified by Armand that she was being demoted to office manager because of her unreliability. Hampton's salary was not affected as a result of the demotion. Plaintiff took additional time off from January 21, 2024 to January 28, 2024 due to illness related to her gall bladder surgery. On February 25, 2024 plaintiff was discharged.

After being terminated, Hampton filed suit against the Armand Corporation in New Jersey State Court, alleging she was wrongfully discharged in retaliation for taking medical leave in violation of the FMLA and in violation of public policy under New Jersey law. Armand removed the case to the United States District Court, which dismissed the FMLA claim and remanded the state law claims to state court. The Law Division granted the employer's motion for summary judgment on the state law claims and plaintiff appealed.

The Appellate Division's Decision

The FMLA requires that covered employers grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons: (1) the birth and care of the newborn child of the employee; (2) for placement with the employee of a son or daughter for adoption or foster care; (3) to take care of an immediate family member (spouse, child, or parent) with a serious health condition or (4) to take medical leave when the employee is unable to work because of a serious health condition. An eligible employee is one who has been employed by the employer for at least 12 months or for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave.

Although plaintiff did not meet hours worked eligibility requirements, she contended that, the FMLA reflects a broad public policy in New Jersey that protects employees from being terminated for taking sick leave, no matter how long they have been employed. To support her contention, Hampton pointed to case law that reflected a policy of protecting employees against retaliatory conduct after reporting an unsafe workplace condition and termination after making a worker's compensation claim.

The Appellate Division noted that under New Jersey common law there is an exception to the employment-at-will doctrine that permits an employee can sue his or her employer for wrongful discharge if the termination of employment is contrary to public policy. See Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). "Public policy" can be found in state or federal constitutions, state and federal statutes, regulations or in the common law. If an employer terminates an employee in violation of public policy, the employee can seek tort damages, such as compensatory damages for emotional distress, punitive damages, as well as compensation for monetary losses and back pay. But the Court ruled that the FMLA establishes a clear mandate of public policy only for "eligible employees" wrongfully terminated pursuant to its provisions. That public policy does not translate into a public policy that protects short term employees. Moreover, the Court ruled that the objectives embodied in the polices that protect employees who report unsafe workplace conditions or make worker's compensation claims did not apply to employees who take sick leave. Thus the Court concluded that New Jersey law does not protect employees from termination for taking sick leave.

Plaintiff also claimed that the Armand Corporation engaged in a pattern and practice of discharging or forcing the resignation of employees who sought medical leave, before they became eligible for FMLA protection. The Court ruled that these allegations were unsubstantiated and without merit.

Conclusion

The court in Hampton correctly refused to expand the FMLA beyond its clearly defined scope under a "public policy" rationale. But, while the court ruled that New Jersey law does not protect employees from termination for taking sick leave, it should be noted that plaintiff did not assert a claim of handicap discrimination. Employers who are inclined to terminate an employee for taking too much sick leave should be careful that they are not dealing with employees are suffering from a disability that could form the basis for claim of handicap discrimination under the New Jersey Law Against Discrimination or the Americans With Disabilities Act.