State News : New Jersey

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New Jersey



Robert Stein worked for Atlas Industries.  He tore his meniscus at work and ten weeks into his recovery he saw the treating surgeon, who allegedly said that Stein would not be released from work until August 10th.  Stein admitted that the surgeon gave him a release slip to return to work on July 20th but to do only office work until August 10th.  Stein actually gave that release slip to his employer.  Around the same time, the treating surgeon advised Atlas Industries that Stein could return to work with light duty restrictions in two days.  Atlas thought that Stein would return to work on the following Monday.

For his part, Stein thought that he had two more weeks of FMLA leave coming to him.  He did not show up for work on Monday, nor the next few days, nor did he call in.  On Thursday Atlas fired him for violating company policy in missing three workdays without calling in or providing notification.

Stein sued alleging violations of his rights under the FMLA because he was still within two weeks of the 12 weeks he was permitted under the FMLA.  The district court ruled for Atlas, noting that while an employee is out on FMLA, he must comply with the employer’s notice and call-in policies.  Stein appealed to the Sixth Circuit Court of Appeals.

The Atlas policy required employees to either return to work or call in once their doctor released them with light-duty restrictions.  The handbook said that someone who was absent three consecutive days without permission or call in would be automatically discharged.

Stein argued that an employer may not require an employee to return to work once cleared for light duty if the employee still has not exhausted FMLA leave, citing to 29 C.F.R. 825.702(d)(2).  The Court agreed with this principle but noted that Atlas’s policy required either return to work or call in, and Stein did not call in to report his intentions.

The Court of Appeals held that once Stein’s doctor verified that he was physically able to work, Stein had to call in at a bare minimum.  “The fact that he ultimately could have turned down a light-duty assignment does not change this requirement.”  The Court added, “Indeed, the handbook is unequivocal; it provides that ‘it is the employee’s responsibility to be on the job and keep Atlas advised when you are unable to work, whatever the reason.’”

The Court also rejected Stein’s argument that the company retaliated against him for using FMLA leave.  It noted that Stein was not fired right after he sought FMLA leave.  This did not happen until 10 weeks later when Stein had two weeks of FMLA leave left.  Interestingly, however, the Court did allow Stein to go to the jury on another legal basis, namely retaliation and interference under ERISA.  Stein had a son who suffered from a rare neurological condition and for whom the company had spent over $500,000 on medical expenses the year before Stein was fired.  The Court noted that both before and after Stein’s firing, the company had publicly expressed worries about “skyrocketing” health-care costs in a series of employer notices.

The Court noted that Stein had worked for Atlas for nearly 20 years, had worked overtime when asked, and won a perfect attendance award in the past.  The Court said, “In combination with Atlas’s documented concerns about skyrocketing health-care costs and its managers’ purported comments about Jordan (the son’s) claims, this evidence permits an inference that Atlas was motivated at least in part by its desire to be free from a medical-cost albatross.”  The Court therefore allowed the ERISA claim to go to a jury.

The case can be found at Stein v. Atlas Industries, 2018 WL 1719097 (6th Cir. April 9, 2018).



John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at