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FMLA protection can be triggered by ‘Potential’ of serious illness

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in FMLA Guidelines,Human Resources

Employees can take job-protected FMLA leave for their serious health conditions. But does the FMLA cover leave taken by an employee who thinks he has a serious condition and needs some tests to check it out?

Yes, it does. That’s why employers should never discipline or fire employees while they’re in this “limbo” medical stage.

Until you find out whether an employee has a “serious” condition, assume that he does and it’s covered under the FMLA.

Recent case:
A year into his job at a New Jersey limo company, James Sarnowski took six weeks off after undergoing heart surgery. About a year later, his doctors wanted to check his heart again. They asked him to wear a heart monitor. Depending on the results, he might need further surgery.

Sarnowski told his boss right away, explaining that he might be out again for six weeks.

The company fired him one week later, citing performance issues. He sued. The company tried to argue that Sarnowski wasn’t covered by the FMLA because he was simply undergoing testing—he hadn’t been diagnosed with a serious condition.

The federal court scoffed at that reasoning. It said Sarnowski earned FMLA protection the instant he notified his employer that he was undergoing testing for a condition that could be covered under the FMLA. It sent the case to trial. (Sarnowski v. Air Brook Limousine, No. 06-2144, 3rd Cir., 2007)

Final tip: If you must fire during the testing stage, make sure your reasoning and documentation are bulletproof.

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