Your Attendance Policies Could Buy You a Lawsuit

A few (let’s call them troublesome) details about intermittent leave under the Family and Medical Leave Act came across my desk in an e-mail today that I decided to pass on because some of those details were news to me.

More importantly, the e-mail contained a link to an article by Anne E. Larson, chair of the labor and employment practice group at Chicago-based Much Shelist, that made it pretty clear some of those details would be news to HR practitioners as well, since they aren’t spelled out real clearly in the FMLA.

The note referred to a Jan. 6, 2010 federal court decision in the case of Jackson vs. Jernberg Industries Inc. that sided with the plaintiff, Matthew L. Jackson, who was discharged after numerous unscheduled absenses and late arrivals that he told his employer were related to a wrist condition without providing a written note from his doctor.

The company thought the combination of it’s doctor’s-note requirement and no-call/no-show attendance policy would support the firing. The court judge, in the Northern District of Illinois, said otherwise — that, in fact, Chicago-based Jernberg Industries’  doctor’s-note policy “interfered” with the plaintiff’s exercise of FMLA by requiring him to produce a doctor’s note after each absence when his physician had already provided a single certification supporting the need for intermittent FMLA leave for one year.

While conceding that FMLA regulations do not address the legality of doctor’s-note policies, the judge determined that recertification is the preferred method of verifying that an employee’s time off is FMLA-related. (The law specifies when an employer can request a doctor’s recertification. So does Larson, in her article.) There’s also a sticky wicket around going through the allowed ropes to verify a doctor’s recertification, which doesn’t do much to enhance the employer-employee relationship, Larson says.

The judge also cited other cases supporting an employee’s own “word” for verification of FMLA-related intermittent leave, but as Larson notes, “asking an employee to provide the reason for his or her absence … is not the same as ‘verifying’ the articulated reason.”

It’s worth a look. Larson goes on to discuss what this employer could and should have done — and what all employers can do in this situation — like simply discharing the plaintiff under its no-call/no-show policy alone, which would have been allowed under the FMLA.

Not only is it worth a look; it’s probably worth a conversation with your labor and employment counsel. You might want to update your employee handbook, too.

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