Employers can require employees who are off work for an-qualifying illness (their own serious health condition or that of a child, spouse or parent) to provide updates on their conditions. But watch out if you have a policy that calls for termination if the employee fails to report for work when his doctor said he would be ready to return—especially if more is still available. Make absolutely sure the employee knows about the rule.
Recent case: Michael Fleming, who has bipolar disorder, was fired when he didn’t show for work after the end date of a doctor’s note excusing him from work. In fact, he still had a serious health condition and would have been eligible for additional time off had he requested it.
Fleming sued, alleging he had been fired in retaliation for taking leave. He testified that he didn’t even know he was eligible for FMLA leave—he had simply provided a doctor’s note saying he would be off work due to illness.
The court landed heavily on the employer. First, it said the company violated the FMLA by not providing employees with a rights notice. Second, it said the employer knew Fleming might be eligible for FMLA leave when it got the doctor’s note and should have explained histhen. Finally, it said Fleming’s case should go to trial so a jury can decide whether the company really had a “no-show on expiration of medical leave” policy and, if it did, whether Fleming was even aware of it. (Fleming v. Envirite of Ohio, No. 5:06-CV-2200, ND OH, 2007)
Final note: Post the FMLA rights notice in a prominent place. Make sure managers know that a medical leave form should trigger an FMLA eligibility determination, and that employees understand their rights to FMLA leave.
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