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Think worker is lying about health? Ask before disciplining

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

Employees say the darndest things. Take, for example, those who call in sick or are out on disability for conditions you strongly suspect are not quite as serious as they say. It’s difficult to prove a medical condition isn’t as debilitating as claimed when the employee has medical reports to back him or her up, but that doesn’t mean you can’t test that employee in other ways.

One way is tried and true—surveillance. Find out what the employee’s really doing on sick leave and then ask. If you don’t get an honest answer, you have an independent ground for discharge.

Recent case: Alshonette Plummer sued her employer, the U.S. Postal Service, alleging she was unfairly disciplined because of her race. The Postal Service fired her after finding that she was exaggerating an on-the-job injury.
The service said it had a surveillance tape that showed Plummer loading groceries, sweeping her garage and driving despite a doctor’s note that said she couldn’t and shouldn’t do such things. When asked about her activities, Plummer lied until confronted with the video evidence. The service fired her for lying and reinstated her after a 118-day unpaid suspension.

The 7th Circuit Court of Appeals tossed out her case after the Postal Service showed that other employees, who were also disciplined, hadn’t committed a similar offense. Since Plummer couldn’t point to another worker who lied and received a lesser punishment, and since there was no evidence that race discrimination was the real reason, she lost the case. (Plummer v. Potter, No. 06-3039, 7th Cir., 2007)

Final note: A word of caution—Make sure you don’t single out for surveillance employees on FMLA leave or those receiving reasonable accommodations for disabilities. The key is to treat all employees alike. 

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