The answer depends on what happened in the emergency room—and what might have happened if the trip had been skipped.
That’s why it’s important for employers to exercise reasonable judgment before firing an employee who visited the emergency room. You can’t just look at the final diagnosis and conclude the condition wasn’t serious.
Instead, consider giving the employee the benefit of a doubt. The FMLA itself does.
Recent case: Edward Johnson worked for Kmart as a loss prevention associate and was near termination for missing too much work under the company’s attendance policy. One morning, as he was preparing for work, the babysitter called and said a dog had bitten his young son. The boy’s eye was bleeding.
Johnson rushed his son to the emergency room after calling his supervisor to tell him about the incident. ER doctors thought the boy might have been so seriously injured that failing to treat it would cause blindness. They told Johnson to take his son to another ER with an ophthalmologist on staff. That’s what Johnson did.
As it turned out, the eye was not as severely damaged as originally thought, and the child was treated with a bandage and antibiotics.
Kmart fired Johnson for missing work. Johnson sued.
The trial court said the case should go to a jury. It concluded that Johnson had shown that he and the ER doctors reasonably believed that the child might have serious eye damage, and if untreated, his condition could have incapacitated him due to blindness. That was enough to warrant for the ER visits. (Johnson v. Kmart, No. 07-14393, ED MI, 2009)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Chicago bank branch fires low-vision worker after a day
- No need for extra severance when laying off litigious staff
- Severance pacts can't ask employees to waive their rights to EEOC claim
- Employees' temporary disabilities don't trigger ADA protections