On January 31, 2012, the US Court of Appeals for the Third Circuit issued an opinion in Haybarger v. Mancino. The key litigated issue was whether a supervisor in a public agency may be individually liable under the FMLA.

Plaintiff Debra Haybarger, who worked at a municipal agency, missed work frequently to seek medical attention for Type II diabetes, heart disease and kidney problems. Her supervisor, William Mancino, was critical of Haybarger's need to take health-related absences and eventually advised the agency to terminate her employment. Haybarger filed suit under federal and state anti-discrimination laws, alleging that Mancino and the agency terminated her because of her medical conditions. The district court granted summary judgment in favor of Mancino, finding that he could not be found liable under the FMLA because he did not have sufficient control over Haybarger's employment since he did not have the final authority to fire her. Haybarger appealed.

On appeal, the Third Circuit, in an issue of first impression, held that a supervisor in a public agency may be subject to individual liability under the FMLA. The court reasoned that the plain language of the FMLA states that an employer is "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer" (29 U.S.C. § 2611(4)(A)(ii)(I) (2011)). The Third Circuit recognized that its holding is consistent with those in the Fifth and Eighth Circuits, while the Sixth and Eleventh Circuits do not permit individual liability under the FMLA against public agency supervisors.

The Third Circuit reversed the district court's grant of summary judgment. The court found that Mancino may have had sufficient supervisory authority over Haybarger and was partly or wholly responsible for the alleged FMLA violation while acting in the employer's interest. Even though Mancino lacked the final authority to fire Haybager, he recommended her termination, was present at the termination meeting and wrote the termination letter to Haybarger.

Employers should be aware that the Third Circuit may broadly interpret when a supervisor may be considered an employer and subject to individual liability under the FMLA. Supervisors should be trained on properly managing an employee taking FMLA-protected leave. Employers should consider allowing employee leave issues to be administered and handled by a centralized department, such as Human Resources.