Human Resources News & Insights

Employee forced to show mastectomy scars after FMLA leave — or get fired

The latest FMLA lawsuit to gain prominence shows the expensive danger of failing to incorporate some form of flexibility in return-to-work policies. In the case, an employee wanted to return to work, but her employer wouldn’t let her until she underwent an unusual medical exam. 

Broward Health, which runs hospitals in Broward County, FL, has a policy that requires employees who’ve missed work due to surgery to submit to a medical examination of their wounds before being allowed to return to work.

Broward takes this policy very seriously. In fact, its strict adherence to the policy is well documented in a new lawsuit brought against Broward Health by Andrea Santiago, who worked for the employer as a social worker until she was fired.

What happened?

According to Santiago’s lawsuit, she was granted FMLA leave after she informed the employer that she needed a mastectomy resulting from her breast cancer.

After taking less than a month of FMLA leave, Santiago was cleared by her doctor to return to work.

Santiago knew about the return-to-work policy, as she had her breasts examined by Broward Health’s in-house medical clinic following an earlier biopsy. She claimed the examination by her employer was “demeaning and humiliating.”

So following her mastectomy, Santiago asked if the exam requirement could be waived. A Broward nurse she spoke to indicated that the requirement might be waived if Santiago could provide a note from her doctor declaring that she had no open wounds or sutures.

Santiago then submitted such a note to Broward. But the employer refused to waive the exam requirement. Santiago then tried appealing to the medical clinic’s management — again having no luck with anyone she spoke with.

During this process, Santiago even gave Broward permission to speak to her doctor about her condition. That had no effect. Broward officials still insisted she submit to the exam.

Santiago finally took her waiver request to Broward’s head of HR, who also told her she’d need to submit to the examination. Santiago then countered by saying she’d done some research and found that the policy violated both the ADA and the FMLA, and that she “did not want to have to hire an attorney.”

Broward still didn’t budge.

Santiago then got her attorney to submit a letter to Broward, explaining that the return-to-work policy violated the FMLA.

To that, Broward’s attorney responded with a letter of his own, reiterating that the policy would not be waived.

Submit or else

Santiago was then informed via a separate letter that she had until March 18, 2015 to submit to the exam or be terminated.

When she failed to submit to the exam by that date she was sent another letter stating that she had voluntarily resigned from her position.

On April 3, Santiago sued Broward health, claiming FMLA interference and retaliation.

Her claims have yet to be heard, but this case is a good example of what can happen when employers fail to bend even a little in the return-to-work process.

Broward’s desire to make sure employees returning to work don’t have open wounds that could affect patients’ health is certainly understandable. But, having only Santiago’s lawsuit as a guide, it certainly seems Broward could’ve found some wiggle room in its policy — by at least discussing Santiago’s condition with her doctor for starters.

That kind of flexibility can do wonders in the courtroom — or keep you out of one altogether.

Even if Broward wins the case, it now stands to lose a pretty penny. Fighting a case like this isn’t cheap.

Cite: Santiago v. Broward Health

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