posted on Tuesday, December 20, 2005 10:31 AM
by
Rod Satterwhite
If at first you don't succeed, lie lie again
Here's a set of facts that could leave you sick to your stomach: Employee checks her leave balance and determines she has almost no sick time left. Soon thereafter, she shows up for work at 6:30 A.M. and leaves within 2 hours. The next day, she goes to physician assistant about her gastroesophigal reflux disease to get the absence the day before certified as a "chronic condition" and therefore an FMLA-qualified absence. Physician assistant says no, employee goes over her leave time, and the employer terminates her in accordance with both its policy and the collective bargaining agreement.
Part Deux: Employee goes to a physician to try and get the absence covered under FMLA. The physician also says no.
Finally, going for the medical trifecta, the employee goes to a nurse practitioner, who gives the employee a note that says "Reports missed day of work 7/31/02 due to stomach pain seen in office today with epigastric pain." The nurse practitioner then completes the FMLA form certifying the condition as "chronic". Employee gives the form to the union rep, who gives it to the employer, who sticks to its guns.
Employee sues for FMLA discrimination. Employer moves for summary judgment. The result? The federal district court for the Northern District of Iowa denied summary judgment. In an unpublished opinion, the court held the Employer's request for medical certification and whether or not the Employer gave Employee a chance to fix any problem with that certification were triable issues of fact. It also held that the law does not restrict the employee's ability to seek second (and in this case third) opinions with regard to certifications, so long as the certification is made within the DOL-required 15 day time period. Makes us wonder how many medical appointments one could schedule for one day....
Cook v. Electrolux Home Products Inc., N.D. Iowa, No. 04-3063-MWB, unpublished opinion, 11/28/05.