On January 9, 2017, the 7th Circuit (in a decision by Judge Richard Posner) issued a timely reminder that employers should exercise caution when reneging on work-at-home promises. In Wink v. Miller Compressing Company, the employer initially granted an employee’s request for intermittent Family and Medical Leave Act (FMLA) leave to take her autistic child to therapy and daycare. Approximately six months later, the employee’s son could no longer attend daycare, and the employer granted the employee’s request to work from home two days per week and use FMLA time while she was caring for her son rather than working. 

After the employee successfully worked from home for several months, the employer informed her that it was undergoing serious financial difficulties and could no longer allow the remote work arrangement. On a Friday, a human resources (HR) representative gave the employee an ultimatum: show up for work on Monday at the office or face termination. The employee responded it would be nearly impossible to find care for her son on such short notice. The HR representative then made a costly mistake: he incorrectly informed the employee that the FMLA covers leave from work only for doctor’s appointments and therapy. In actuality, the FMLA entitles employees to take leave to care for family members with serious health conditions, which includes those with autism. While not addressed in this specific case, HR directors can be held individually liable under the FMLA.  

The following Monday, the employee appeared at work and informed her employer that she was unable to find care for her son and that she needed to return home. She then left work and was immediately terminated. The employer reflected in paperwork that the employee’s last day of work was the preceding Friday. The employee then brought suit, alleging, among other things, that she was terminated in retaliation for exercising her FMLA rights. 

The jury returned an award for the employee on her FMLA retaliation claim. The employer appealed and the 7th Circuit upheld the award and even raised the award of attorney’s fees from 80% to 100%. In the decision, Judge Posner reasoned that since the employee had successfully worked from home in the preceding months, the jury’s best inference was that the company was angered by her request to stay home. This inference was supported by the HR representative’s “phony line” that she could not use FMLA leave to care for her child, which contradicted the express language of the statute. 

The FMLA can present difficult scenarios for employers, especially when addressing remote work arrangements. Moreover, when an employer has agreed to arrangements for mid- to long-term periods of time, the employee is more likely to claim that the employer has implicitly acknowledged that the arrangement is covered by the FMLA and should continue on without any foreseeable conclusion, even if it exceeds the 12 week limit under the statute. Employers and their HR personnel benefit from training on the FMLA and its regulations as well as legal counsel on the developing case law in this area.