When it comes to sick leave in your company of 50 or more employees, you have to follow the doctor’s orders regardless of whether or not you think the reason for the leave is justified or the employee worthy. Because most business owners, especially small business, are so singularly focused on productivity, they are appalled to learn of all the limitations placed upon them by government rules and regulations, including the requirement to comply even when they disagree.

Take a situation where an employee is diagnosed as an alcoholic or drug addict. As long as he or she is under the care of a physician, you are obliged to accommodate the requirements for time off from work, and the employee is protected from termination. Combine this with the requirement of the law to provide the employee with strict confidentiality, and you have both hands tied with regard to holding this employee accountable. For a company with 50 or more employees, the Family Medical Leave Act rules your actions.

The courts and the government consider healthcare matters sacrosanct and take a very dim view of owners and operators taking action again employees due to the employee’s health-related problems. You have to comply even in a case like I had where it wasn’t an alcoholic or addict, but a smoker whose lengthy coughing fits, smell and general “smoker issues” was a significant problem in terms of customer interaction and other employees. It doesn’t matter that this employee had chosen to smoke; she wasn’t breaking any rules.

There are some caveats, including the length of time the employee has been employed in order to be eligible for the specific law. FMLA requires you to grant the employee a paid or unpaid medical leave of absence if there is a bona fide need and also to protect that employee’s job if the leave is 12 weeks or less.

One of the most important elements of FMLA is that it needs to be formally invoked. When the employer determines that a medical leave is going to be necessary for an extended period, then the employee’s FMLA rights need to be invoked in writing. This could be as simple as a registered letter from the employer to the employee specifying that the employer recognizing that the employee may need to be absent for an extended period of time. The employer should specify that he or she recognizes this possibility and therefore wishes to remind the employee of his or her rights under FMLA.

The letter should be dated, which starts the clock on the 12 weeks of job protection specified by the law. If the employer grants this medical leave without formally invoking FMLA, then the employer is inadvertently extending the protected time the employee is allowed to be gone. If the employee is out two or three weeks and then the employer invokes FMLA, the employer cannot go back and set the date starting FMLA protections from the first day the employee left. FMLA protections start on the date that the employer formally invokes FMLA protections.

There are several ways an employer can risk a wrongful discharge lawsuit. Liability may occur if the employer decides that the job cannot be held open for the employee’s return (prior to the end of FMLA protections). Another possibility is if, upon the employee's return, he or she cannot do the job as well as prior to the leave, and the employer terminates that employee. Wrongful discharge is exactly what it sounds like: the employer has wrongfully discharged or terminated the employee, and the employee may exercises his or her rights to recourse in civil court.

For example, an employee feels he or she has a case and contacts an attorney who agrees and suggests that the individual file a complaint with the EEOC or the state human rights commission. Neither the EEOC nor the state human rights commission costs the employee, so a complaint represents a cost free examination. If the EEOC or the state human rights commission determines that the discharge was in violation of a law or rule, they will call for a remedy, which usually includes restitution or remuneration to the wrongfully terminated employee, and a fine. The fine is usually three times actual damages and is paid to the EEOC or the state human rights commission.

Once this is done, a civil law case will usually follow. The case will cost the employer additional legal fees, court costs and, perhaps, additional restitution. In a situation where an employee’s job is considered essential, there is a loophole in FMLA that allows the company not to hold the job open if it creates hardship for the organization. However, should the employee file a complaint regarding the loss of the job due to health-related issues, the company is held accountable to prove the job was essential.

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