An employee calls out for two days for a stomach complaint. He then calls out for FMLA-covered condition of cellulitis (a skin infection causing pain and inflammation) in his leg that keeps him out for two weeks. Most employers would assume that the stomach complaint is unconnected to the leg infection, and not look any further. His employer did just that - and it got the Company into potential trouble.
In McLaughlin v. Autozoners, LLC, the employer had an attendance policy under which points were accrued for absences other than FMLA-covered absences, and termination occurred when an employee reached 12 points in a 12-month period. The employee in this case had accrued 8 points as of July 2010. He went to the doctor on July 29, complaining of abdominal pain and loose stools. The doctor wrote him a note excusing him from work on Thursday and Friday, July 29-30, which the employee provided to his supervisor. On Sunday, the employee informed his supervisor that he would miss work on Monday, August 1, because of leg problems that had arisen during the weekend. He was diagnosed with cellulitis, and remained out of work through August 15 because of that condition.
The cellulitis-related absence was covered by FMLA, and was not counted under the attendance policy. The employer, however, counted the July 29-30 absences as attendance violations because the employer assumed they weren’t connected to the FMLA-covered condition and they didn’t seem to meet the requirements for a serious health condition under the FMLA (overnight stay in a hospital or an illness/injury lasting more than 3 days involving at least two visits to a doctor). This resulted in the employee’s reaching 12 points and termination.
The problem was that the employer made assumptions about the illnesses without getting all the information. The Court found that there was some evidence that the cellulitis-related symptoms started on July 30, as the employee had reported to his doctor, and therefore there was the possibility that the entire period of absence perhaps should have been considered a continuous serious health condition protected by the FMLA. The Court determined that there were fact issues that must be decided by a jury – whether the stomach ailment was a serious health condition and whether the cellulitis may have started earlier and overlapped the July 29-30 absences.
Lesson for employers – don’t assume that different illnesses are automatically unrelated for purposes of FMLA. More information may be available and should be considered.