The rule has been drummed into your brain: An employee can take job-protected leave under theAct ( ) if he suffers from a "serious health condition" or has to care for a child, spouse or parent who has a serious health condition. But what if the employee just thinks he has a serious condition and takes a couple weeks to check it out? Is that leave covered under FMLA? Yes, according to recent court rulings.
Most recent case: After truck driver James Woodman experienced chest pain, he had an EKG test, which showed he probably had not suffered a heart attack. Still, his doctor gave him a note saying he shouldn't return to work until he had a stress test, which was set for 10 days later.
Woodman phoned his boss, told him what the doctor said and explained that he couldn't work for 10 days. His boss asked him to submit the doctor's note, but Woodman didn't deliver it for a full week. The company fired him for violating the firm's unexcused-absence policy. (The stress test later revealed no heart condition.)
Woodman sued. The company argued that he wasn't covered under FMLA because he didn't have a serious condition. But the court sided with Woodman, saying the leave was protected because a doctor determined that the absence was necessary until further tests could determine the condition's severity. (Woodman v. Miesel Sysco Food Serv. Co., No. 226001, Mich Ct. App., 2002) Other courts, including the U.S. Courts of Appeal for the 4th and 8th Circuits, have ruled the same way.
Advice: Don't take disciplinary action against employees while they're in this "limbo" medical stage. Until you find out whether or not the worker has a serious condition, assume that he does and is covered under FMLA.
Also, remember that it's your burden to determine if a worker's leave request is protected under FMLA. The court rejected the company's claim that Woodman didn't give enough notice. His phone calls explaining his situation were enough, he didn't have to request "" explicitly. Familiarize yourself with the definition of a serious condition so you know FMLA-protected leave when you see it.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Notify workers quickly that leave counts toward Family and Medical Leave Act (FMLA) time.
- FMLA and ADA accommodation: Don't dismiss request to work from home
- Don't tell employee she can take FMLA leave until you have checked her eligibility
- Serious illness, not just its symptoms, triggers FMLA