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One way to stop retaliation cases: Evenly enforce sick-leave documentation rules

by on
in Employment Law,FMLA Guidelines,Human Resources

You shouldn’t have to worry about losing a retaliation lawsuit if you consistently follow your internal rules for seeking medical information from employees who ask for sick leave. That’s true even if the employee has already complained about discrimination, either internally or to the EEOC.

Here’s why: The test for retaliation is whether a reasonable employee would have been dissuaded from complaining about discrimination in the first place if he or she knew that the alleged retaliation would take place. Applying existing rules to everyone across the board can’t possibly dissuade complaints, since those rules would have been applied whether the employee complained or not.

Simply put, employees don’t suddenly get greater rights than other employees just because they complain about discrimination.

Recent case:  Michael Wells worked for years as an industrial security specialist for the U.S. Department of Defense (DOD). His job included inspecting the facilities and operations of defense contractors to make sure they handled classified documents properly.

Wells didn’t get along well with his supervisor and was placed on a plan to improve alleged work deficiencies. Among those deficiencies was a habit of keeping classified documents at home and turning in reports late. Under the improvement plan, Wells was not allowed to work from home and had to update his supervisor about his work twice a day, once in the morning and again in the afternoon before leaving for the day.

After learning about the plan, Wells immediately stopped coming to work, using up all his accumulated leave. He also filed an EEOC complaint, alleging various forms of discrimination. He asked for leave extension and was allowed to take medical leave. However, when Wells showed up at work several times for meetings, claiming to feel fine, the supervisor got suspicious.

Wells was warned that if he planned to take more leave, he had to provide medical documentation. The supervisor then gave him a standard FMLA leave form for his doctors to fill out.

Wells delayed providing the requested information and was placed on unpaid leave. He then provided a doctor’s note explaining that he suffered from internal bleeding. The DOD reinstated his leave. After a total of 10 months off, Wells returned and then retired.

But then he sued, alleging retaliation for complaining about discrimination.

In court, the DOD pointed out that the same supervisor had asked another employee for additional medical documentation, too, and that the government’s personnel rules allowed it to ask for additional information.

The court dismissed the case, noting that there was sufficient reason to ask for more information, since Wells was showing up at work unannounced and apparently feeling fine despite his alleged and undocumented medical problems.

It also said there was nothing wrong with using the FMLA form to request more information even if the employee wasn’t asking for FMLA leave, a practice Wells had challenged (Wells v. Gates, No. 08-1358, 4th Cir., 2009)

Final note: Employers that enforce their reasonable rules consistently rarely run into legal trouble. It’s selective enforcement that spells trouble.

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