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Avoid snap decision on whether illness would qualify under FMLA

by on
in Firing,FMLA Guidelines,Human Resources

When her three-year-old son awoke with a high fever, congestion and an earache, Juanita Caldwell got permission from an assistant manager to miss her morning shift at Kentucky Fried Chicken. Caldwell's doctor diagnosed an acute ear infection, prescribed antibiotics for 10 days and said the boy probably would need surgery to prevent permanent hearing loss.

When Caldwell showed up to work her next scheduled shift, the manager fired her. She sued under the Family and Medical Leave Act (FMLA). The company responded that the boy's ear infection didn't qualify as a "serious health condition" under the law. The court disagreed.

Childhood earaches are common, the court said, but her son's earache could qualify as a serious condition. He was later prescribed a second dose of antibiotics and had to get the recommended surgery.

One of the criteria for judging whether a condition qualifies for FMLA leave is "a period of incapacity of more than three consecutive calendar days", no easy standard to apply to a three-year-old. To make that determination, the appeals court's majority considered whether: 

  • The child participated in his daily routines. 
  • The child was particularly difficult to care for.
  • A day care facility would have accepted a child with that illness. 

The dissenting judge said that applying a day care center's "sniffle standard" in such cases will greatly expand the definition of incapacity. (Caldwell v. Holland of Texas Inc., No. 99-2382, 8th Cir., 2000)

Advice: Don't make a quick firing decision when workers take leave to care for a child's apparently mild illness. If you do, you'll bear the risk that the medical problem will become a serious condition covered under the FMLA. The employer in this case would have been better off warning Caldwell. A warning is more easily undone.

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