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Employee Found to be Entitled to Question a Bad Practice When Seeking FMLA Leave



By Patricia Porter Kryder

After the chemist discussed a potential leave with his supervisor, he explained to his supervisor he had been granted custody of his son for six months.  The chemist further explained he had moved into a rental home and enrolled his son in daycare much closer to the plant. The chemist explained his five year old son was having emotional issues and was not adjusting well, and he would be spending time with his son during his lunchtime to help him adjust,

The chemist followed up these communications with requests for additional meetings with his supervisors. The meetings were cancelled by the supervisors, and which his immediate supervisor later denied. Instead, the supervisors waited until after the chemist had performed necessary work related to a company audit, and then informed him that he was being suspended for five days due to performance deficiencies and the excessive length of his lunch breaks. In addition, they presented the chemist with a Performance Agreement and Attendance Improvement Plan (PIP/AIP) meant to address his performance deficiencies relating to work times and accountability.

When the chemist again asked for assistance, his supervisor recommended he report to a licensed professional counselor for evaluation. The professional advised the chemist to call in sick, and she would start the paperwork for Family and Medical Leave Act (FMLA), certifying the chemist was suffering from a serious health condition as defined by the FMLA. According to the form, the chemist was incapacitated and unable to perform work of any kind due to too much stress, and inability to focus on his job because of issues as a single parent. In addition, the form indicated the chemist would need “therapy” and “evaluation for medication,”  and twenty additional treatment sessions were necessary.

Later, the company nurse required the chemist to complete an authorization for release of medical and other information in order to certify for FMLA purposes. When the chemist asked questions about the requirement for signature on the release, no one explained the form or the differences in short-term disability, long-term disability, and FMLA.  After the chemist questioned the process, the supervisor terminated the chemist under the pretext of his belligerent behavior in dealing with the nurse, and for faking an illness, although his purpose for seeing the doctor was based upon his supervisor’s request that he seek help from the doctor.

Although the district court found in favor of the employer, the Fifth Circuit reversed the decision based on the chemist’s termination for what appeared to be a retaliatory motive. The Family and Medical Leave Act entitles employees to take reasonable leave for medical reasons. In addition, FMLA prohibits employers from discharging or in any manner discriminating against an individual for opposing any practice made unlawful by the Act. The Department of Labor has further interpreted this statutory provision to forbid employers from terminating employees for having exercised or attempted to exercise FMLA rights.



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