To be eligible for, employees have to show more than that they suffer from a serious health condition. They must also show that they can’t perform at least one essential job function because they have that condition or are undergoing treatment for it.
For employers, that means it’s necessary to compare the employee’s certification and his job description. Before finally approvingleave, check to make sure the certification supports the idea that the employee can’t do at least part of the job.
Note: Don’t assume that just because an employee can perform one or two essential functions, he isn’t entitled to leave.
Recent case: Jeff Pagel worked for TIN, a company that manufactures and sells corrugated paper products. Pagel was a sales account manager who traveled extensively. With six years’ experience at the company, he was earning commissions just shy of $200,000 per year.
About the same time TIN implemented its first-ever performance evaluation system, Pagel began experiencing chest pains. The first cardiologist he saw found nothing amiss. Because Pagel continued to feel ill, he sought a second opinion from another cardiologist who recommended heart surgery to clear a partially blocked blood vessel.
Pagel said he told his boss he would be in the hospital for a few days undergoing the procedure. Shortly before the scheduled hospitalization, which was supposed to last at least two days, Pagel received a negativethat highlighted deficiencies.
Even as Pagel checked in for surgery, he continued calling customers and stayed in phone contact with his supervisor. He did the same in the recovery room and the following day. Because of complications, Pagel had to return to the hospital for two days after initially being released. He then returned to work.
A few weeks later, the supervisor insisted on riding along with Pagel for three sales calls to review his selling skills. The calls did not go well, and Pagel was eventually terminated for.
He sued, alleging he had really been fired in retaliation for taking FMLA leave.
TIN conceded that Pagel had met the first condition for FMLA leave—that he had a serious health condition. But it argued that he didn’t meet the second condition. Since he made phone calls from his hospital room, the company’s argument went, he was effectively performing the essential functions of his job.
The court didn’t buy it. It said being able to perform one essential function wasn’t enough. Pagel merely had to show there was another function he couldn’t perform—in this case, driving to meet with customers. (Pagel v. TIN, Inc., No. 09-CV-1132, CD IL, 2011)
Final note: Pagel ended up losing the case anyway because TIN could show he was fired for a reason unrelated to FMLA leave. His performance fell below the new standards the company had implemented. Because he would have been terminated for poor performance whether he took FMLA leave or not, his case was tossed out.
The FMLA doesn’t give employees protection from their own poor performance while they are at work.
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