Smart employers make sure that no employee is ever punished for taking.
They do that by carefully cataloging when every employee takesleave. And if they must discipline an employee for attendance problems, they spell out the reason why each absence counted toward punishment.
Recent case: Tereena Marks worked for Ohio Bell and was frequently absent for various FMLA-related reasons. She had anxiety and panic attacks, complications arising from weight reduction surgery and other gastric problems. When she needed FMLA time off, Ohio Bell always granted it if her doctor certified the time off or it was part of Marks’ approvedplan.
But the company required her to account for all time off. When she missed work for court hearings in a lawsuit she had filed, Ohio Bell gave her time off under its court-attendance policy. That policy requires employees to return to work following a court appointment.
Marks claimed her court appearance and subsequent meeting with her attorney took almost all day. Therefore, she didn’t come back to work for the rest of her shift. The company investigated and learned from the court that the hearing ended in the late morning. Marks’ attorney also told the company that the two had not met that afternoon. Ohio Bell fired her.
Marks claimed she was terminated for taking too much FMLA leave.
The court disagreed, pointing out that Ohio Bell kept meticulous records showing that it never counted her FMLA hours against her for attendance purposes. Instead, it showed that it terminated Marks for lying about her day in court. (Marks v. Ohio Bell, No. 1:10-CV-1293, ND OH, 2011)
Final note: Marks also claimed she was disabled and had been fired because she might apply for disability leave. But the court said she never asked for accommodations.
- Base FMLA eligibility on date leave begins
- Got a good reason to fire worker who has requested FMLA leave? Document and do it!
- Fire away if defiance follows discipline
- Remember the WARN Act when making reductions in force
- For trusted public employees, unsavory off-duty conduct can amount to a firing offense