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Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits
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- Does workers' comp leave automatically put you on notice of a 'serious' FMLA condition?
Does workers' comp leave automatically put you on notice of a 'serious' FMLA condition?
- By Mindy Chapman, Esq., Mindy Chapman & Associates
- 12/13/2007 - 4:00pm
- FMLA
Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law
monthly newsletter. She is highly regarded for her workplace compliance
training that “clicks and sticks,” because it is practical and
memorable. She is also the coauthor of the American Bar Association’s
bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."
The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the
workforce—from boardroom executives to managers and supervisors and to
hourly employees in union and non-union environments.
Employees don’t have to say the
magic words, “I am requesting FMLA leave?” to earn protection under the
FMLA. It’s up to employers to recognize qualifying leave, based on the
information provided by employees.
But when employees are out for workers’ compensation injuries, must you interpret that as automatic notice that they’re suffering a “serious health condition” that qualifies them for FMLA leave? This new ruling shows how workers’ comp leave can quickly morph into FMLA notice:
Case in Point: While operating a snow plow, public works employee Gene Jedlowski hit a manhole cover, causing him to crack his head on the truck’s roof. He was diagnosed with four herniated discs in his neck and went on workers’ comp leave. His boss wasn’t happy, saying the leave “wasn’t right,” and even calling Jedlowski to ask him to report to work while on leave.
On the day Jedlowski started his leave, his boss discovered a racially hostile CD in Jedlowski’s township car and recommended he be terminated. Sure enough, he fired Jedlowski on the day he returned.
Jedlowski sued the township, claiming his firing was retaliation for taking workers’ comp leave and interference with his FMLA rights. The township argued that Jedlowski had no entitlement to FMLA benefits because he was receiving benefits under the state’s workers’ comp program, and that Jedlowski was fired in good faith for having inappropriate music at work. (Jedlowski v. Charter Township of Genesee, E.D. Michigan, 11/14/07)
How does this case end … and what lessons can be learned?The court sided with Jedlowski and sent the case to trial. It connected the dots and stressed the “suspicious timing” of the employee’s firing and his workers’ comp leave. It also took into consideration the boss’s disdain for, and statement about, the employee’s leave.
As for the FMLA benefits, the court said the township knew Jedlowski requested leave for a serious heath condition for his workers’ comp claim. That was sufficient to put the employer on notice for FMLA benefits. The employee did not even have to ask.
3 Lessons Learned … Without Having to Go to Court
1. Watch Your Timing … or a Court Will. Here is yet another case in which an employee is terminated soon after he asks for leave or takes leave. The courts are counting the seconds, minutes, hours, days, weeks and months between the two events. The closer you make them, the closer you will be to end up in court.
2. Avoid Stray Remarks … Even a Few Can Kill Your Defense. In this case, the manager only said three words (“It isn’t right”) that landed him at the defendant’s table. Keep your lips zipped—and encourage supervisors to avoid saying anything that could be deemed spiteful. If you have to say something, try these two words, “Feel better!”
3. Workers’ Comp Notice Can Morph into FMLA Notice. Now you know this. Make sure to reach out to employees on workers’ comp to start the FMLA clock ticking. And never retaliate against employees for exercising their legally protected rights to take leave.Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits
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