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Sometimes, an employee whose job is in jeopardy will try to protect it by initiating a lawsuit intended to intimidate her employer. She may call in sick instead of showing up for a termination meeting, hoping to create an FMLA retaliation or interference claim.

Here’s how to handle such tactics: Treat her absence as you would any other. If she gives any indication that she wants or needs FMLA leave, follow your usual process by asking for medical certification. That may call her bluff.

If she gets the certification, grant FMLA leave, but proceed with any underlying termination process, if the reason for firing her has nothing to do with her absence. For example, if her work performance—not attendance—is at issue, document those problems.

In the following case, the employer handled the situation just right.

Recent case:
Marilyn Black was a nurse who had problems getting along with her co-workers and sometimes spoke out inappropriately in front of patients. She received verbal warnings many times, and her performance evaluation noted the problems.

Finally, after one too many arguments at work, management decided to terminate Black. That’s when she called in sick for several days without giving a specific reason.

When she did show up several days later, she was immediately fired.

That happened before she got a chance to hand in what she later said was a request for FMLA leave for stress and anxiety. She sued, alleging FMLA violations.

The court tossed out her case, pointing out that the employer didn’t know she was taking time off for a serious condition when she called in, and then fired her before she could ask for FMLA leave. Since she was no longer an employee, she wasn’t entitled to leave.  (Black v. Holzer Clinic, No. 07-CV-194, SD OH, 2009)

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