A depressing story

In this edition of In the Trenches, Acme ends up in an altercation when a worker is too ill to personally notify her absence.

Tess LaCoyle, a crew foreman at the Acme plant, had been diagnosed with severe depression and suffered periodic downer episodes during the past two or three years. Several times, the attacks were severe enough to cause her to be absent from work for various periods.

In spite of this, Tess generally received positive job performance reviews every six months. The only black marks in her personnel file were a few formal citations that criticized her attendance. In each case, though, Tess filed a rebuttal document that claimed her absences were related either to family or personal illness.

One day last June, Tess didn’t punch in when the shift started. When Phil Trayshon, the plant manager, walked through the department, he inquired about her. One of her direct reports, her sister, told Phil that Tess had been hospitalized the previous night for a nervous breakdown and was subsequently transferred to the mental health unit at another hospital. Phil arranged for flowers and a get-well card to be sent to her hospital room in the name of the crew that she led.

Mort Gage, the HR manager, complained to Phil that Acme didn’t receive formal notice that Tess needed FMLA leave. Phil said he assumed that Tess would need FMLA leave when her sister told him about the hospitalization.

The following week, Tess’s doctor sent Mort a letter that indicated Tess needed to be off work for one more week and would return to work on July 1. But Tess didn’t return to the plant that day.

It makes absolutely no sense to suspend an employee who already is absent from work.

When Tess also didn’t return to work after the Independence Day holiday. Mort phoned her at home to tell her that Acme never received formal notice of the need for FMLA leave and that she was suspended without pay. The discussion became quite heated on both sides, ending abruptly when Tess became quite angry about the idea of a suspension and shouted, “I quit.”

Tess filed a claim of retaliation and argued that there was no need for adherence to Acme’s strict formal reporting rules because a family member informed the plant manager of the situation. She argued that Acme already knew she needed leave as evidenced by the fact that Acme sent flowers to her hospital room. Tess also noted the short interval between hospitalization and termination as evidence of retaliation. Acme argued it never received formal notice that Tess needed FMLA leave, but acknowledged sending flowers to her in the hospital.

Special thanks to Charlie at Burrell Scientific.

How could this situation have been avoided? Did Acme receive constructive notice that Tess needed FMLA leave? Is it a case of rewarding “bad” behavior when a company sends flowers to a hospitalized employee? Was Phil obliged to apply for FMLA leave on Tess’ behalf when he learned she was hospitalized?

An academician says:

FMLA allows an employee to take 12 weeks of job-protected unpaid leave, with some restrictions, for family or personal medical problems. The drill usually looks something like this: Tess doesn’t show up for work; Phil calls her home and finds that she’s been hospitalized; Phil calls HR and reports what he’s been told; and HR takes it from there and contacts, or attempts to contact, Tess.

Tess has several options at this point. In the simplest scenario, she can cover her absence with sick days, or personal days, or even vacation days, if she has any left. That would allow her to get paid for her absence, which she wouldn’t receive by taking an unpaid FMLA leave. Or, anticipating an extended absence, she could start unpaid FMLA leave. In either of the above cases, Tess must inform HR.

However, a problem arises if Tess isn’t able to make that decision or isn’t able to communicate (if she’s in a coma or heavily medicated). Given that situation, Tess would be unable to notify HR, which is usually required for FMLA leave, and HR has to make the decision. Acme could have put Tess on FMLA without receiving notification from her by sending her a certified letter saying Acme is putting her on FMLA leave. That would probably have taken care of it. Actually, that’s probably what Acme should have done in this situation when they were unable to talk with Tess.

Most companies have these procedures written in the HR policies and procedures manual. Because Acme (and Tess) didn’t follow the procedure, the case is going to end up in litigation, giving the lawyers a wonderful opportunity to display their legal skills.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

Mort needs to get up to speed on the requirements of the Family and Medical Leave Act. All that’s required to trigger the application of the FMLA is notice to the employer, via any means whatsoever, that an employee is absent for reasons covered by the FMLA. When Tess’ sister told Phil that Tess was hospitalized, that constituted actual, not constructive, notice that Tess was absent for a reason covered by the FMLA. No “application” for FMLA leave by an employee is required. Once Acme received notice from Tess’ sister that she was absent for an FMLA-covered reason, the burden shifted to Acme to provide Tess with notice that she was entitled to FMLA leave. Apparently, Acme omitted this step as well.

The story doesn’t end there, however. Tess’ doctor released her to return to work on July 1st. She didn’t report to work on July 1st, she didn’t contact Acme and she didn’t provide a doctor’s note authorizing her to be off work beyond July 1st. In other words, Tess was absent without either proper authorization or notice. Rather than merely suspending her, Acme could have terminated her, provided that it terminated other employees under similar circumstances.

Finally, it’s obvious that Mort was extremely unhappy with Tess and her absence. Nevertheless, it makes absolutely no sense to suspend an employee who already is absent from work. The employee already is absent — what’s the point?

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A plant engineer says:

This situation could have been avoided if the Mort, HR manager, would have been more professional in his contact with Tess. I can only imagine the angst Mort must have experienced when he didn’t have a proper form filled out and signed by Tess. I’m sure that’s very important and we need to keep our forms current to reflect the current status of each associate, especially those who aren’t on the job or off on FMLA leave.

Of course, Tess wasn’t formally on FMLA because her medical problems prevented her from signing forms. This also could have been avoided if Tess hadn’t ended the conversation with “I quit” and had given Acme the common courtesy of calling and letting HR know about her current situation. It would seem that Acme had waited two weeks to hear from Tess and she made no effort to contact them. When the doctor reported that Tess would return to work on July 1st, Acme had every reason to believe that she would be there. Is it too much to ask for an employee to call their employer to let them know why they are not on the job when scheduled? I don’t believe the question is whether or not Acme received “constructive notice” that Tess needed FMLA, but why she missed work and failed to call in after the doctor released her.

I think it was a kind gesture to send Tess flowers while she was hospitalized, which in no way rewarded bad behavior. I don’t know of many people who would want to be in the hospital. I don’t believe that Phil could apply for FMLA on Tess’ behalf. Tess’ doctor and Acme HR could work that out with a fax machine and a few minutes of time. FMLA is a medical matter and the patient’s condition and medical records are only for authorized eyes to see.

Jeffrey L. Strasser
Bacova Guild
(540) 863-2656
Strasser.Jeff@bacova.com

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