Employee is "sick": Stick to FMLA regulations

by on January 14, 2010 · 0 Comment POSTED IN: HR Info Center

The courts say that it depends on the worker’s recent health complaints

Seems like the courts never tire of throwing you legal curves about FMLA regulations. Here’s the latest:

When a worker reports he or she is “sick” and has to go home – without saying anything else – you may have to break out the FMLA paperwork.

Whoa! That sounds like a big expansion of your liability under FMLA regulations. After all, federal courts have said in the past that your FMLA duties – notifying employees of their rights, providing certification forms, potentially authorizing leave – aren’t triggered when somebody simply says they’re sick.

Context matters

It’s not that simple anymore, in light of the new decision in Illinois.

Here’s what happened:

An employee said he was sick and had to go home, punched out over his supervisor’s objections, and was fired for insubordination. When he sued, the court said the medical context should have alerted the employer that he might be eligible for leave under FMLA regulations.

The supervisor knew the employee was worried about prostate cancer. He had reported a “weak bladder,” tests had shown he had a high level of PSA, a marker for the cancer and he had undergone a prostate biopsy. (As it turns out, he was diagnosed with prostate cancer after his dismissal.)

What’s this mean for you? After all, managers can’t routinely ask employees for their medical info – it’s illegal.

Best bet: Have supervisors make a quick note – or send an e-mail to themselves – when an employee tells them of a medical issue. That way, if the employee later says he’s sick, the supervisor will know what to ask, and whether to reach for those FMLA forms.

Cite: Burnett v. LFW Inc., No. 06-1013, 7th Cir., 12/26/06.

Tricky FMLA regulations: Would this FMLA trap have caught you, too?

Supervisor Frank Gessay wasn’t used to being on “Peacock Row.” That’s what the gang in the warehouse called the top-floor corporate offices.

HR Director Sally Farber met him in the hallway and ushered him into her carpeted office. He heard the door click behind him.

“Thanks for coming here on short notice, Frank,” she said. “I’ll get right to the point.”

“I do need to get back to work as soon as I can,” Frank said as he sank into a side chair.

She nodded toward a thick file folder centered precisely on the desk blotter.

“We’re getting sued by David Callahan, for violating his rights under the FMLA and ADA,” she said.

“Why am I not surprised,” Frank sniffed. “What a loose cannon. I fired him for insubordination after a series of reprimands.”

Missed signals?

“Let’s review the facts.” Sally said. “His attorney says Callahan started complaining of bladder problems about four months before you terminated him.”

“That’s partly correct,” Frank said. “I offered to transfer him to a different job because of conflicts with a co-worker. He refused. He said the new job didn’t have restroom access.”

“Didn’t he tell you he was going to see a urologist?” Sally asked. “That’s what the lawsuit claims.”

“Yeah,” Frank said. “That was about the time I gave him an oral warning about his performance, under the progressive discipline policy you want us to follow.”

“And I’m glad to see you’re following that policy,” Sally smiled. “But it says here he came back with a doctor’s order for a prostate ultrasound and biopsy.”

Treatment plan

“I arranged for him to use sick days for that,” Frank said. “Then he gave me a treatment plan calling for work restrictions.”

“There’s a copy here,” Sally said. “It calls for no heavy lifting or strenuous activity.”

“That was about the same time I wrote him up again for poor job performance,” Frank said.

He leaned forward. “A week later he claimed he was ‘sick’ and demanded to go home. He got nasty and argued with me in front of the crew. I couldn’t let that slide, and fired him.”

“I wish you’d come to me about this sooner,” Sally said. “It turns out he has prostate cancer and he’s claiming we discriminated against him.”

“He never asked for FMLA leave, and he didn’t look sick to me,” Frank said.

Did the employee win?

Management lessons in FMLA regulations

Yes. The court said a jury should hear the case. That often means a hefty settlement check for the employee. The court’s ruling hinged on these factors:

Simply saying “I’m sick” is not sufficient by itself to trigger protection under FMLA regulations. But in this case the supervisor was aware of diagnostic procedures that would indicate a serious medical condition covered by FMLA regulations.

An employee does not need to specifically ask for FMLA. Regulations say it is up to the employer to decide if FMLA applies – a decision best left to HR.

The firing coincided with the worker’s demand to go home because he “felt ill,” and thus was suspicious. The court said a jury should decide if the termination was retaliatory.

Cite: Burnett v. LFW, Inc., No. 06-1013, 7th Cir., 12/26/06.

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