Don’t force FMLA leave unless health condition is serious

The FMLA allows employers to designate time off as FMLA leave even if employees want to use other time off (such as vacation and personal days) to deal with serious health issues. Typically, employees try to keep as many unpaid FMLA days in the bank as possible.

Of course, employers want to run paid time off concurrent with FMLA leave to run the clock out on FMLA leave. Overall, it means employees will be off their jobs for a shorter period of time.

But be careful—if the time off turns out to be for a health condition that wasn’t serious and you later deny FMLA leave because the employee has none in the bank, she can charge you with interference with FMLA rights.

Recent case: Kimberly Wysong worked for Dow Chemical Company and took plenty of paid medical leave in her last two years of employment. For example, in 2001 she took 464 hours, and in 2002 she took 783 hours for various ailments including hernias, a hysterectomy, mononucleosis and other problems.

Then, Wysong complained of neck pain to the plant nurse. The complaint began a chain of events that ended in Wysong being placed on involuntary FMLA leave until she could pass a physical test. The plant doctor, after reviewing her medical records, concluded the test had to be conducted after Wysong stopped taking pain medications. Her doctors said she couldn’t go off the meds. End result: She lost her job.

FMLA Compliance D

She sued, alleging Dow was wrong to have placed her on involuntary FMLA leave for the neck problem. She said it wasn’t a serious health condition and therefore she wasn’t eligible for FMLA leave. In other words, she claimed the nurse was wrong to say she couldn’t work with a stiff neck.

The 6th Circuit Court of Appeals agreed with Wysong on principle: When an employer places an employee on FMLA leave, it must be certain the reason holds up as a serious health condition.

But it still dismissed the case because Wysong didn’t have an interference case. The court said she could sue only if she asked for later FMLA leave and was turned down. (Wysong v. The Dow Chemical Company, No. 05-4197, 6th Cir., 2007)

Final note: This case shows the tension between workers’ compensation issues and the FMLA. Often, the reason employers place employees on involuntary FMLA leave is to prevent conditions from escalating into injuries covered by workers’ compensation.

That approach may save on workers’ compensation costs, but it does leave employers open for possible FMLA interference claims if employees ask for FMLA leave.

A better approach may be to send the employee home to recover and let her initiate the FMLA request. Otherwise, place the employee on unpaid leave, but don’t subtract the time from her FMLA allotment.

What’s a ‘Serious’ health condition?

Eligible employees are entitled to FMLA leave to care for their own “serious condition” or the serious condition of a child, spouse or parent. The law defines a serious condition as one that requires inpatient hospital care or at least a three-day incapacity with continuing treatment by a health care provider.

The U.S. Labor Department’s list of serious health conditions includes heart attacks, most cancers, back conditions that require surgery or extensive therapy, strokes, spinal injuries, respiratory conditions including emphysema and pneumonia, severe arthritis and injuries resulting from accidents. Pregnancy, morning sickness, prenatal care, childbirth and recovery from childbirth are also specifically covered.

This list is not all-inclusive, and any illness or injury that meets the requirements of a serious health condition qualifies for leave.