Wednesday, February 15, 2012

What is an employee’s word for the need for FMLA leave worth? Not much

How often does this scenario play out in your organization? An employee tells a supervisor that he’s sick and needs to take FMLA leave. The supervisor refers the issue to HR or management. Paralyzed out of fear that they will screw up an FMLA process that they really doesn’t understand, they approve the FMLA leave with no other questions asked.

Because of a fundamental misunderstanding of when employees qualify for FMLA leave, lots of employers over-compensate when dealing with employee medical issues and the FMLA. They over-compensate by mistakenly assuming that any employee with any illness or medical condition is FMLA-eligible. In reality, only an employee with a “serious medical condition” qualifies for FMLA-leave.

In reality, you do not have to take an employee at his or her word that he or she needs FMLA leave. Case in point? Huberty v.Time Warner Entertainment Co. (N.D. Ohio 2/8/12).

Huberty claimed that Time Warner interfered with his rights under the FMLA when it fired him after he asked his supervisor for time off to deal with “stress in his life.” Before Huberty found a doctor to certify his medical condition, he began taking time off. Time Warner terminated Huberty for violating its no-call/no-show policy for three consecutive days.

The court dismissed Huberty’s FMLA claim, concluding that neither his own subjective assessment of his health did not satisfy his burden to establish a “serious health condition.”

There is an abundance of case law that makes it clear that Huberty’s own subjective assessment of his health cannot be used to demonstrate a serious health condition. A colleague on this Court has noted as follows with respect to this burden:

It does not mean that, in the employee’s own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a “health care provider” has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness. If it were otherwise, a note from a spouse, parent, or even one’s own claim that one cannot work because of illness would suffice. Given the legislative history surrounding its enactment, the FMLA cannot be understood to establish such liberal standards for its application.

What does this mean for your management of your employees’ FMLA leave? Don’t just take your employees at their word that they need FMLA leave. You have an absolute right to request and receive a timely medical certification before certifying a leave of absence as FMLA-qualifying. Do not short-circuit your rights by rubber-stamping every employee medical request as “FMLA.”