Unforeseen leave of absence

By Raymond Dreyfack -- Plant Engineering, 8/1/1999

A bout of pneumonia caused Maintenance Repairman Mel Holman to be out of work for 6 wk.

His supervisor, Bill Riley, confided to his assistant, "I don't wish Mel bad luck, but between the two of us I won't miss him. The guy's a trouble maker."

His assistant nodded agreement. "I know just what you mean."

A few weeks after returning to work, Holman was absent for 2 days after phoning in that his back was acting up.

"His back is acting up like my left foot is acting up," Riley said. "This is our chance to get rid of that dud once and for all."

He typed up a Termination Notice dismissing Holman for "unsatisfactory attendance."

Holman protested the dismissal, charging prejudice. "That 6-wk leave of absence was medically motivated and I had a doctor's letter to prove it. This dismissal is in violation of the Family and Medical Leave Act of 1993."

"That excuse doesn't hold water," Riley replied. "To qualify for a leave under the Act, an employee has to give notice in advance."

"That was impossible. I had no way of knowing in advance that I'd be out for 6 wk."

Riley shrugged. "That's your problem, not mine. The dismissal stands."

"We'll see about that."

Question: Can Riley make the dismissal stick?

Calvin's ruling: "If you want to get rid of Holman for unsatisfactory performance, you'll have to fire him for unacceptable performance and back it up with documentation," Plant Engineer Greg Calvin told Riley. "Requiring advance notification of an unforeseen medical emergency is neither realistic nor in keeping with the intent of the Family and Medical Leave Act. In addition, an employee can't be expected to identify and define his legal recourse in such matters when an emergency occurs."