Tell bosses: Don’t play doctor with the FMLA

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in FMLA Guidelines

When an employee asks for and is granted FMLA leave, absences that occur during the approved leave can’t be held against him. That includes days when he might be able to work but, according to doctors, shouldn’t do so.

According to a Texas court, that means employers can’t retroactively assess absenteeism points during FMLA leave.

Recent case: Perry Picarazzi worked for John Crane Inc. when he was diagnosed with alcoholism. He called his boss when he realized he needed treatment and explained that he had to go into a residential rehab program for several weeks.

The company then approved FMLA leave for Picarazzi. When his stint in rehab ended, Picarazzi went home, but his doctors told him he should not return to work until his approved FMLA leave expired, a matter of a few days.

When the supervisor learned that Picarazzi had been released from the residential treatment facility but had not shown up for work, he assessed absence points under the company’s attendance policy. The supervisor reasoned that FMLA regulations authorize FMLA leave for alcoholism only while employees are actively undergoing treatment, so that any day outside treatment wouldn’t count. Picarazzi was eventually fired because he missed too many days under the company’s attendance policy.

Picarazzi sued for violations of his FMLA rights.

The court said the company got it wrong. First, because it had already approved the FMLA leave for the days in question, it would be unfair to deduct days without letting the employee know. Second, employees don’t have to be at a medical facility to be under treatment. Finally, the medical note made it clear that Picarazzi was not to work during the days in question. (Picarazzi v. John Crane, Inc., C-10-63, SD TX, 2011)

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