Take note if you—like many employers—have rules in place to prevent employees from abusing sick leave. You may have an obligation to explore an employee’s eligibility for
And be sure to act fast if you require employees to furnish medical certification for requested time off. Delaying sending the forms may in itself constitute interference with an employee’s right to take FMLA leave.
Bottom line: When an employee indicates she may need FMLA leave, process the request right away. Get the forms to her, which puts the ball in her court.
Recent case: Pamela Miles-Hickman negotiated with her boss what she assumed were reasonable accommodations for her sensitivity to chemicals. He made sure no one wore perfume and that all cleaning solutions were scent-free, among other accommodations. But then the boss left his job. Later, HR concluded Miles-Hickman wasn’t disabled and thus needed no accommodation.
Miles-Hickman then called in sick for several days due to her condition. The company required medical verification, and she asked for the forms several times. Instead, the company counted her absences as unexcused and never provided the forms. Miles-Hickman sued, alleging FMLA and ADA violations.
The court tossed out her ADA claim, reasoning that she wasn’t disabled by chemical sensitivities.
But it sent the FMLA interference case to trial, reasoning that because Miles-Hickman saw her doctor numerous times for the medical problems related to her absences, she might have a serious health condition covered by the FMLA. And that meant the company should have promptly sent her the forms. (Miles-Hickman v. David Powers Homes, No. 07-0754, SD TX, 2008)
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