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Employees must ‘fess up about their need for leave

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in Firing,FMLA Guidelines,HR Management,Human Resources

Linda Collins' attendance record at work was spotty at best. Her employer warned her more than a dozen times, including four formal warnings. But when she again called in sick two days in a row, her employer didn't buy it and fired her.

She sued under the Family and Medical Leave Act (FMLA), claiming she was suffering from depression, a protected "serious health condition." The problem: Collins never told her employer about her condition until after the firing. That's why the court threw out her claim, saying that even though depression may meet the description of serious health condition, the employee's use of the term "sick" did not trigger her FMLA rights. (Collins v. NTN-Bower Corp., 7th Cir., No. 01-1930, 2001)

Advice: "Sick" doesn't imply "serious health condition," and your employees have to give you some inkling of the difference.

Eligible employees who want to take FMLA leave must give you 30 days' advance notice when the need is foreseeable, such as during a pregnancy. When it's not foreseeable, they need inform you only "as soon as practicable," which usually means within one or two days. The employee in this case waited far too long.

Key point: While employees have to voice their need for leave and estimate when they'll return, they don't have to assert their rights explicitly ("I need FMLA leave").

That's why employers must be alert to the possibility that FMLA may apply. For example, it may be up to you to decide whether a worker's leave request during her husband's cancer treatment would qualify for FMLA leave.

For your protection, any handbook or written guidance must include information on an employee's FMLA rights and responsibilities as well as your company policies regarding giving notice.

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