Your Employer Can Fire You for Taking Medical Leave

Posted July 24, 2012 in Labor and Employment by Richard Dahl

An employer does have the right to fire an employee who is on extended medical leave, the First U.S. Circuit Court of Appeals has ruled.

The employee, Kathy Henry, a commercial credit analyst at a bank in western Massachusetts, began experiencing neck pain, blurred vision, and dizziness in early 2008. She went to a neurologist who concluded that she was suffering from a spinal-cord compression and prescribed physical therapy.

The bank provided some workplace accommodations and Henry was able to continue working, but her condition worsened until it was difficult for her to get out of bed. Her primary-care physician examined her and wrote an “excuse slip,” stating that she needed to be on “bed rest until further notice,” which Henry gave to the bank on July 1.

That’s when the confusion started.

The  bank sent her various forms to fill out for 12-week Family and Medical Leave Act (FMLA) leave and short-term disability leave. Three weeks after she’d been put on bed rest, the bank informed her that her FMLA leave had begun on July 1, leaving nine weeks remaining. Six weeks later, the bank sent her a letter informing her that her request for short-term disability leave had not yet been approved because her doctor hadn’t provided the proper documentation, nor could her absence be qualified as FMLA leave.

 

Conflicting Medical Recommendations

Henry’s doctors provided her employer with conflicting information, only adding to the confusion. A form filled out by her primary care physician stated she could return to work as long as the bank provided her with reasonable accommodations for her physical limitations effectively ending her right to medical leave, and her employer told her she had to return to work.

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Her neurologist, however, wrote a note stating that Henry was scheduled to have surgery for her condition and would be unable to work in the interim. When Henry presented the note to her employer, they insisted that, in spite of lacking proper medical documentation, she had already received the full 12-week equivalent of FMLA leave and wasn’t entitled to additional time off. Her job was terminated on the spot.

Henry responded by suing the bank, alleging retaliation in violation of the FMLA and disability discrimination under state law. The case was dismissed by a lower court and Henry appealed, only to have the decision affirmed by the appeals court.

The court found that expecting the bank to give her leave beyond the 12 weeks allowed under FMLA didn’t qualify as being a “reasonable accommodation” because the medical support for it was insufficient, and her employer was free to terminate her.

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Doctors Must Agree

Fort Lauderdale, Fla., employment attorney Donna M. Ballman, whose book, “Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed, or Sue the Bastards,” will be published in September, said the case is an example of the “landmines” that employees can encounter when seeking FMLA leave. In this case, she said, the problem appeared to be Henry’s difficulty in getting her doctor’s certification for required for FMLA leave. 

Donna M. Ballman

“[O]nce she got the certification, the doctor said she was able to work with the accommodation of no heavy lifting,” which “basically negated her ability to continue her FMLA,” Ballman said.

Employees need to know that, under certain circumstances, extended leave beyond the 12 weeks given by FMLA may qualify as a reasonable accommodation under the Americans With Disabilities Act (ADA) or an equivalent state law. However, “in order for that extended leave to be a reasonable accommodation, the employee needs to make sure that their doctors are in agreement that the accommodation is needed,” Ballman cautioned.

“If the employee gets a certification that they don’t qualify for leave, they’d better hoof it to their specialist right away and get the correct certification rather than handing in the one saying they didn’t qualify.”

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