Human Resources News & Insights

Employee refuses FMLA — then sues when she’s fired for absences

For whatever reason, not all employees who are offered FMLA leave decide to use it. But can companies get in trouble when those employees are disciplined for excessive absences?

In one recent case, an employee missed 10 days of work because of a medical problem. When she told her boss she was going to be absent again, the boss said she may be able to take FMLA leave.

She declined, apparently because she may have needed surgery in the near future and was waiting to see how much time off she’d require at that point.

So she took the days off without completing FMLA certification. The problem: She was out of her allotted sick leave and had already been warned by her manager about excessive absenteeism. After she missed several days, she was fired.

She sued, claiming the company violated the FMLA. Her argument: The supervisor should have warned her that her job would be in jeopardy if her leave was unprotected.

But the judge didn’t buy it. The manager did the right thing: He offered FMLA when he learned she had a medical issue. The law didn’t require him to do anything more.

The employee should have understood the difference between FMLA and unprotected leave — and she’d already been warned about missing too much time.

Cite: Knox v. City of Monroe

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  • Kris

    A similar thing happened at my past employer – a woman missed a ton of work due to her sick child. Being the HR Manager, I met with her to tell her about FMLA and she freaked out, told me her family issues were none of my business, and stormed out of my office. She continued to take too much time off, and we wrote her up. She was livid, and I told her if she had taken the FMLA leave she would have been protected. Hopefully she realized what a stupid mistake she made.

  • Angel M.

    Am I wrong in tinking that as employers, if we have reason to belive it is an FMLA issue, to place them on conditional FMLA, until medical certificatioin is provided?
    Then if there is none submitted, the days off can be used against them…

  • Marie Munley

    When an employee lets us know that they are going to have to take a medical leave, we designate the time off as FMLA whether the employee wants FMLA or not. If the employee is adamant about not wanting to use FMLA, the employee is required to use their vacation time. There are not too many employees that want to use vacation for a medical leave.

  • John

    Angel

    You are mostly correct. FMLA does not have to be requested. Given certain triggers FMLA can be assigned. Under the current FMLA documentation there ae two forms. One is ‘Eligibility’ for FMLA. You may then forward the employee the required medical certification. They have 15 calendar days to get it back to you. If that does not happen then you can gice an additional 7 days for them to fulfill their resposibility toward the form. If they refuse then you have met all of the requirements from the employer’s side. The employee forfiets FMLA protection by their refusal to cooperate.

    I we assign FMLA to an employee there is no ther bargining that we will do if they refuse to be responsive or responsible to the requirements of FMLA.

  • Marla

    We had an employee who used intermittent FMLA and she had almost exhausted all of her leave for the 12 months through intermittent use. And then when she only had 2 weeks left, she wanted to tender her resignation. I recommended that she just give her resignation with the termination date being the end of her leave period (it is for her health condition), but the Employee Relations manager wanted to accept the resignation with the date submitted.

  • sandy

    I need some guidance – have been in hr for a very short time – we have an individual who has been on workers comp for a little over a year on and off – the individual is on light duty – but due to the work environment a decision was made that even the light duty might contribute to more re-injury and further liability so this individual has a one day a week light duty job that does not use the injured part at all – but there seems to be no betterment to the injury and this individual all ready gained an attorney – I was speaking to some one in regards to what else to do and they said I should put them on FMLA even if it’s intermitten – my question is if administration had made the decision to not put the individual on the restrictions that the doctor gave as explained above can we still put the individual on FMLA, we have had to hire some one to do the other jobs that this individual can not do, can any one advise.

  • John

    Marla

    The Employee Relations Manager was absolutely correct. Here is why. Even though you may have thought it was an obvious abuse issue, if you terminated the employee at the end of her FML leave then you would be wide open for a retaliation lawsuit. The proximity of time of termination being the same date FML would have xpired would have been a slam dunk for the employee.

    Accepting the resignation protected the company and accomplished the same thing, the employee being separted from employment. You have to be real careful about anything that looks like retaliation for an employee exercising a protected right.

  • John

    sandy

    Be careful with this one. You are dealing with a WC absence first. The employee should have been placed on FML at the same time the WC absence began. She still has FML protected rights because she has not been assigned FML. I would do that. However when FML expires she would still enjoy the protections as applied through WC.

    You must find what is applicable for this employee under WC. an the person return to the essential job duties in a reasonable time? Are there accommodations that can be made that are not a hardship to the employer? Can the person be retrained for another position?

    There are many issues. Please seek the advice of your company attorney. This could get tricky.

  • Cori

    Do you have a sample letter to send an employee if they deny FMLA?

  • Casy

    I have an employee who accumulated 20 sick days and is refusing fmla for Medical. He is working most of the week but taking of 1-2 days a week. I am afraid his health issuance will be lost because of refusal to submit the fmla paperwork. He had a dr note after surgery stating he was able to return to work however requesting that he be allowed to work from home 1 day a week for foot elevation. Although there is plenty of work he can do from home we have told him that she must use his sick and vacation time (1 month) instead of working from home. Help!!!!

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