Employee being disciplined suddenly gets ‘sick’? Don’t fall for ruse invoking FMLA protection — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Employee being disciplined suddenly gets ‘sick’? Don’t fall for ruse invoking FMLA protection

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in FMLA Guidelines,HR Management,Human Resources

This will probably happen to you someday (if it hasn’t already): An employee in the middle of being disciplined suddenly says he’s ill and has to leave work. Then, after being terminated, he claims you interfered with his right to take FMLA leave.

By “getting ill” during the disciplinary process, the employee thinks he can save his job and put the employer on the defensive.

Don’t fall for it.

The FMLA makes it illegal for employers to interfere with an employee’s right to take up to 12 weeks of protected FMLA leave. But employers can only “interfere” with that right if they know the employee needs leave. Although employees don’t have to say flat out that they need to take FMLA leave, they do have to give their employers some idea that they are invoking their FMLA rights.

A sudden illness in response to discipline won’t do.

Recent case: Howard Gipson worked for Vought Aircraft Industries as a plant maintenance worker. He was also the union president. When the union removed him as president, he lost use of the union’s business office in the HR department. His personal belongings were placed in the hallway.

The company asked Gipson several times to remove his things, but he refused. He told his supervisor he wanted a written order to move the stuff. His supervisor told him he would do no such thing, and that if Gipson persisted in disobeying an order, he could be fired.

Gipson then began feeling ill and walked away without removing his belongings. Instead, he went to the first-aid office to get his blood pressure read. It was slightly high. Saying he had a bad headache, he then requested a medical pass so he could go home and get some medicine.

At that point, Vought Aircraft decided to fire Gipson for insubordination. He proceeded to drive to his doctor’s office, where he made an appointment.

Apparently his next stop was at a lawyer’s office, because he then filed a lawsuit claiming the company knew he needed FMLA leave for a heart condition and terminated him for invoking his rights.

The company said Gipson hadn’t given any notice that he needed FMLA leave—he merely complained of a headache and said he needed to go home.

The court concluded that the company didn’t interfere with Gipson’s FMLA rights because his actions didn’t let the employer know he might need FMLA leave. It dismissed the claim. (Gipson v. Vought Aircraft Industries, No. 09-6026, 6th Cir., 2010)

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