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Don’t let tummy aches turn into entitlements

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in Firing,FMLA Guidelines,Human Resources

Katherine Thorson was fired for excessive absenteeism after missing four days of work due to stomach cramps and medical tests. All of her tests were normal, but weeks later (after her firing) another doctor diagnosed her with stress-related ailments that could be managed with antacids.

She sued her employer, claiming all her absences were covered under the Family and Medical Leave Act. The company argued that Thorson did not have a "serious health condition" within the meaning of the FMLA.

The court sided with Thorson, awarding her nearly $50,000 plus interest, court costs and attorney fees. (Thorson v. Gemini Inc., No. 99-1708, 8th Cir., 2000)

Advice: Recent court rulings like this one have watered down the meaning of "serious" health condition. The courts are relying on Labor Department regulations that say even a common cold may qualify if two other key standards are met: inability to work for more than three consecutive days and continuing treatment by a health care provider.

The employer in this case might have won if it had taken advantage of FMLA procedures to prevent abuse. You should, as part of your sick leave and attendance policies, require a doctor's certification for all absences of three days or more. Ask the doctor for details on the diagnosis, length of the illness and a statement that the employee was unable to perform the essential functions of the job. You can also require a second opinion at your expense.

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