1.13.2010

Termination Persists Despite Doctor's Notes

In dismissing a claim for violation of the FMLA , the United States District for the Eastern District of Kentucky ruled that the plaintiff had failed to provide Comair with adequate notice that she suffered from a serious health condition .

Under Comair’s leave of absence policy, employees were required to call in and provide prior notice of any absence from work. Also, upon returning to work, an employee was expected to provide a written excuse or doctor’s note for the absence. During the last year of the plaintiff’s employment, she arrived late or was absent from work on numerous occasions. However, for each of her absences, she would supply a doctor’s note upon her return to work. On June 25, 2007, the plaintiff was issued a final written warning without suspension as a result of accruing nine attendance events in the previous year. She was also advised that any future attendance events may lead to her termination.

Less than two weeks after receiving this warning, the plaintiff again was absent from work. Upon returning to work, the plaintiff did not provide Comair with a doctor’s note for the previous two days. Sometime within the next two to four days, the plaintiff did submit a FMLA information packet which included a certification completed by her physician. On July 12, 2007, the plaintiff was terminated due to her excess absences. One month after her termination, her doctor sent a letter to Comair describing the severity and character of the plaintiff’s headaches and requested that Comair reconsider her termination.

In granting Comair's motion for summary judgment the court noted that even though the plaintiff did provide a doctor’s slip for a number of her earlier absences, the doctor slips provided absolutely no information as to the reason for her absence. The court further concluded that the slips did not even provide sufficient information for Comair to question the leave or to inquire further as to whether there was a serious health condition involved.

With regards to the FMLA packet, the court focused on the timing of the delivery of the information. The plaintiff testified that she did not provide the FMLA until several days after she returned to work. The court ruled that since plaintiff violated Comair’s notice provisions, Comair was justified in terminating her employment.

Employer's should take note from the Comair decision that every leave of absence that is supported by a doctor’s note does not necessarily equate to a protected FMLA leave. It is still the employee’s responsibility to provide sufficient notice to the employer that they suffer from a serious health condition. Also, regardless of whether the employee has a serious health condition, if they do not provide timely notice of their need for leave pursuant to the employer’s policies, they can be terminated.

Author: Charlie Smith
            614.723.2025
            csmith@ralaw.com

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