Avoid snap decision on whether illness would qualify under FMLA

When her three-year-old son awoke with a high fever, congestion and an earache, Juanita Caldwell got permission from an assistant manager to miss her morning shift at Kentucky Fried Chicken. Caldwell's doctor diagnosed an acute ear infection, prescribed antibiotics for 10 days and said the boy probably would need surgery to prevent permanent hearing loss.

When Caldwell showed up to work her next scheduled shift, the manager fired her. She sued under the Family and Medical Leave Act (FMLA). The company responded that the boy's ear infection didn't qualify as a "serious health condition" under the law. The court disagreed.

Childhood earaches are common, the court said, but her son's earache could qualify as a serious condition. He was later prescribed a second dose of antibiotics and had to get the recommended surgery.

One of the criteria for judging whether a condition qualifies for FMLA leave is "a period of incapacity of more than three consecutive calendar days", no easy standard to apply to a three-year-old. To make that determination, the appeals court's majority considered whether: 

  • The child participated in his daily routines. 
  • The child was particularly difficult to care for.
  • A day care facility would have accepted a child with that illness. 

The dissenting judge said that applying a day care center's "sniffle standard" in such cases will greatly expand the definition of incapacity. (Caldwell v. Holland of Texas Inc., No. 99-2382, 8th Cir., 2000)

Advice: Don't make a quick firing decision when workers take leave to care for a child's apparently mild illness. If you do, you'll bear the risk that the medical problem will become a serious condition covered under the FMLA. The employer in this case would have been better off warning Caldwell. A warning is more easily undone.

FMLA: Learn from recent court rulings

Employees bear the burden of proof in FMLA cases. Sandra Rice was fired soon after she returned to work from time off covered under the Family and Medical Leave Act (FMLA). The company said installation of a new computer system eliminated the need for her job, so she didn't have an automatic right to reinstatement.
She sued under FMLA and won when the lower court wrongly put the burden on the company to prove that it would have fired Rice even if she hadn't been on FMLA leave. But an appeals court overturned the ruling, saying that, under FMLA regulations, the employee, not the employer, bears the ultimate burden of proving that she has the right to return to work. (Rice v. Sunrise Express Inc., No. 97-3982 and 98-2195, 7th Cir., 2000)
Make 15-day deadline clear. Remember that the 15-day clock starts ticking the day you inform the employee that she needs to give proof of a qualifying condition. After Julie Rager took FMLA leave following surgery, the company sent her a certified letter asking for her doctor's certification that she had a "serious" condition covered under FMLA. When Rager didn't respond within 15 days of that first notification, she was fired.
She sued, claiming she didn't get enough time to respond. But the court said the company was within its rights to fire. The court still chided the company, saying the way it communicated the deadline was "clumsy and potentially confusing." Clarity could have kept the employer out of court. Send notification of FMLA requirements by certified mail. Include the deadline and consequences for failing to meet it. (Rager v. Dade Behring Inc., No. 99-1400, 7th Cir., 2000)