Dorsey Partner Roy A. Ginsburg poses the question: "Can an employee who has been fired for bad behavior later say, ‘I should have been offered FMLA instead of a pink slip’?"
The problem surfaces because of an unusual court case. A woman with no outstanding health problems reacted adversely when a stray dog entered the warehouse where she worked. Her ensuing behavior towards her boss and coworkers was profane and aggressive, ultimately leading to her termination. She then sued, alleging FMLA violations.
Mr. Ginsburg points out that the case raises two questions. First, "what obligations are imposed on managerial employees—few of whom have psychological expertise—to discern when employees are suffering from serious mental health problems warranting FMLA leave?"
Second, "if the employer fails to pick up on the “constructive notice” cues, may a discharged employee later assert that he or she was deprived of a leave that would have remedied the problem?"
View Mr. Ginsburg's full article by clicking here.
August 4, 2008 - appearing in HR Daily Advisor (www.hrdailyadvisor.com)