Brian K. Dotson began working for BRP U.S. Inc. in 1999 in a “grind and trim” job. BRP manufactures recreational products including personal watercraft. In the “grind and trim” job, Dotson was required to drill and cut under boats. Sometimes Dotson was forced to do so in tight spaces.

On January 7, 2004, Dotson hurt his back while working under a boat. He continued working for a few more days on light duty status but eventually went to see Dr. Dallas Lipscomb upon BRP’s suggestion. Dr. Lipscomb referred Dotson to Dr. McGuire, a chiropractor, and Dr. Rutz, an orthopedic spine specialist.


Dotson kept an appointment with Dr. Rutz on February 13 for an independent medical evaluation that had been requested by Gallgher Bassett Services on behalf of the workers’ compensation carrier for BRP. Dr. Rutz performed surgery on Dotson’s lower back in March 2004. Dr. Rutz released Dotson for limited duty work at the end of June. Dr. Rutz released Dotson for full duty work in August. From January 19 through the August work release, Dotson could not perform the grind and trim job as a result of his back injury.

Pursuant to its absenteeism policy, BRP permitted employees up to twelve weeks (480 hours) of unpaid leave in any rolling twelve-month period for qualifying absences. According to its employee handbook:

All FMLA time runs concurrent with short term disability and worker’s compensation or any qualifying event. When an employee has exhausted twelve weeks of FMLA time during a rolling calendar year, employment with [BRP] may be terminated.

An employee who is unable to work for more than twelve weeks will be considered automatically terminated at the expiration of that period, regardless of the reason for the inability to work.

In accordance with its policy, BRP terminated any employee who exceeded twelve weeks of leave in a twelve month period.

Prior to the time of his back injury, Dotson had already used 286 hours of FMLA leave in the then current rolling twelve month period. On January 19, BRP sent a letter to Dotson notifying him that he might be eligible for FMLA leave as a result of his injury, that he had 194 hours of FMLA leave to use, and that any FMLA leave would run concurrently with workers’ compensation and short term disability benefits.

BRP followed up with a February 10 letter to Dotson informing him that his leave would end on February 23. Dotson objected stating that workers’ compensation absences did not count against FMLA leave time. BRP responded by stating that Dotson must apply for FMLA leave or face immediate termination. Faced with this threat, Dotson signed the FMLA paperwork but later tried to revoke it. When his FMLA leave expired on February 24, BRP provided Dotson with a letter terminating his employment due to excessive absenteeism.

Doston later sued BRP alleging that BRP terminated his employment after he attempted to re-
turn to work with restrictions for a work-related injury; BRP wrongfully required him to use FMLA leave rather than affording him temporary total disability time as authorized by law; and BRP violated the Illinois Workers’ Compensation Act by wrongfully terminating him for exercising his lawful right to claim workers’ compensation benefits.

The District Court granted summary judgment to BRP finding that Dotson had not shown a causal connection between his workers’ compensation claim and his termination. Dotson appealed the ruling to the Seventh Circuit Court of Appeals.

On appeal, Dotson argued that an employer may not lawfully “force” an employee to take FMLA
leave, may not terminate an employee who is absent for a work-related injury, and may not
count leave covered by workers’ compensation toward the FMLA total. Dotson argued that each of these actions by BRP was evidence of its unlawful retaliation against him.

BRP contended on appeal that it terminated Dotson’s employment because he exceeded his twelve-week allotment of leave under the company’s policy for excessive absenteeism. Because Dotson’s physician did not release him to return to work until August, BRP contended that Dotson’s termination did not violate the law.

Dotson retorted that BRP’s reason was pretextual and that he did not exhaust his FMLA leave. More specifically, Dotson argued that BRP “forced” him to use FMLA leave against his will, terminated him while he was on leave for a work-related injury, and illegally counted time covered by workers’ compensation as FMLA leave.

The Seventh Circuit examined Dotson’s arguments individually. As to his argument that he was forced to take FMLA leave against his will, the appeals court determined that Dotson was absent beyond the twelve weeks allowed under BRP’s policy. If not under the FMLA, Dotson would still have to provide some other legitimate excuse for his absence. The court noted that it was perfectly legal for BRP to institute an absenteeism policy tracking the minimum requirements of the FMLA.

Dotson mistakenly argued that he could not be terminated for absence resulting from a work-related injury. Illinois law does permit this. In addition, an employer may designate an absence as an FMLA absence, provided the employer gives the employee appropriate notice. See 29 C.F.R. § 825.208.

As to Dotson’s final argument that BRP illegally counted workers’ compensation leave towards his FMLA total, the court of appeals turned to the FMLA regulations on the subject:

An employee may be on a workers’ compensation absence due to an on-the-job injury or ill-
ness which also qualifies as a serious health condition under FMLA. The workers’ compens-
ation absence and FMLA leave may run concurrently (subject to proper notice and designa-
tion by the employer).

29 C.F.R. § 825.702(d)(2). See also29 C.F.R. § 825.207(d)(2) (“The Act provides that a seri-
ous health condition may result from injury to the employee ‘on or off’ the job. If the employer designates the leave as FMLA leave in accordance with § 825.208, the employee’s FMLA 12-week leave entitlement may run concurrently with a workers’ compensation absence when the injury is one that meets the criteria for a serious health condition.”). FMLA regulations also provide that:

If the employee has been on a workers’ compensation absence during which FMLA leave has been taken concurrently, and after 12 weeks of FMLA leave the employee is unable to return to work, the employee no longer has the protections of FMLA and must look to the workers’ compensation statute or ADA for any relief or protections.

29 C.F.R. § 825.216(d).

Turning to the evidence, the appeals court noted that BRP had adequately notified Dotson that his leave was designated as FMLA leave and that his workers’ compensation leave would run concurrently with his FMLA leave. BRP did this through its employee handbook and through its January 19 letter to Dotson:

When an employee misses work due to a work related injury, personal illness or family
emergency the employee may also be eligible for FMLA Leave which runs concurrent with
Workers’ Compensation and Short Term Disability.

As long as the employer gives adequate notice to the employee that leave time has been designated as FMLA leave and that workers’ compensation leave will be counted against remaining FMLA leave time, workers’ compensation and FMLA leave may run concurrently.

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