Absent worker didn’t fill out his FMLA form, but won lawsuit
Before you terminate an employee for excessive absenteeism, make sure he has every opportunity to clear up deficiencies on his medical leave certification. And remember: even his failure to meet FMLA compliance standards (turn-in the FMLA form) doesn’t necessarily allow you to fire him.
Here’s the story of one employer who learned that lesson the hard way.
THEY KNEW ABOUT HIS CONDITION
Alex Jiminez was absent from work about 20 times during the year 2000. The reason: constant flare-ups of Crohn’s disease, a chronic gastrointestinal condition. Jiminez’s employer, Velcro USA, knew about his medical condition (it had been documented in previous years). There was never any question of FMLA abuse.
Velcro’s HR director counseled Alex regarding his FMLA rights. He was given an FMLA form to complete. The form required a doctor’s FMLA certification.
But Jiminez didn’t complete the form. Maybe he was simply procrastinating; or maybe he didn’t want to go to the doctor. Whatever his reasons, he received numerous warnings, both verbally and in writing. The warnings were clear: Complete your FMLA forms or your absences won’t count as medical leave and you’ll be discharged for excessive absenteeism.
THE GUY SIMPLY COULDN’T GET HIS ACT TOGETHER
The company didn’t want to fire Jiminez. It simply wanted to enforce its absenteeism policy even-handedly and meet its FMLA compliance goals.
Over the next several months, Jiminez took many more days off, but he didn’t complete the FMLA form. HR sent him another form. And another.
Jiminez said that he was looking for a new doctor, and he needed more time. His employer agreed to wait. It even sent him another form with written instructions and an offer to help him complete the paperwork.
At last, Jiminez presented certification. Unfortunately, it wasn’t filled out correctly: The doctor hadn’t written in the right treatment dates. Jiminez was given one more chance to complete the FMLA certification.
Finally, after receiving numerous warnings, after being given chance after chance to complete his paperwork properly, he was discharged for excessive absenteeism.
Not surprisingly, Jiminez sued his employer, claiming it had violated his rights under Family Medical Leave Act.
GET HIM IN FMLA COMPLIANCE
Velcro went to court confident that the judge would toss the case. After all, Jiminez had failed to submit a health care provider’s certification for his absences. FMLA compliance required certification – as did company policy.
Jiminez argued that because the firm was well aware of his condition, he hadn’t needed to file a new FMLA certification in order to be approved for leave. The law was intended to protect people with illnesses, not punish people who couldn’t fill out forms properly.
In its ruling, the court agreed with Jiminez, suggesting that because Velcro already knew that Jiminez had a chronic disease, it should have escalated its efforts to help him complete the form, not fire him because his paperwork was deficient.
This case shows that you can’t legally fire an employee because he didn’t follow FMLA regulations. Instead, an employer’s responsibility in such a case should be to make sure the employee gets compliant. In this case, additional counseling and mentoring would probably have worked.
Cite: Jiminez v. Velcro USA, Inc., U.S. District Court, New Hampshire, No. 2002 DNH 52, 3/4/02.
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