Question: We have an employee with terrible attendance who’s now asking for 4 weeks off to have surgery in Korea, although we suspect she just wants to take time off to see family. Can we apply our attendance policy if she takes the trip and doesn’t come to work?
Answer: These kinds of situations are always frustrating; it can seem like right when you’re set to terminate an employee for a legitimate reason, they find a way to ask for something that might be protected. Your best bet in this case is to play the long game—comply with the law by giving her any leave she might be entitled to, and if/when she returns and fails to meet your expectations, move forward with appropriate discipline, up to and including termination. Assuming the employee is eligible for leave under the federal Family and Medical Leave Act (FMLA) and any state equivalent that might apply, you’ll need to provide the required FMLA notices. The paperwork you provide will include the FMLA’s medical certification form, which will help you confirm the legitimacy of the need for leave. Also, note that international care and treatment is covered by FMLA, although it will be important to carefully review the medical certification to be sure it’s as clear as possible. Assuming she returns a complete medical certification, the leave would be protected and you would need to grant it. If her performance issues persist once she returns, deal with them as you would any other similar situation.
In a strikingly similar case, a federal district court recently ruled against an employer who failed to provide FMLA information to a worker requesting out-of-country leave. The worker was on a final written warning for attendance, and when he requested 4 weeks off for the birth of his child in the Philippines, the company president, concerned with his attendance and suspecting the employee of lying, reluctantly granted only 2 weeks and didn’t provide any of the mandatory FMLA paperwork. While in the Philippines, the worker informed his supervisor that he needed to stay longer due to medical complications for his newborn. Upon returning 4 weeks after his leave began, his supervisor told him he had been fired for job abandonment. The court ruled that the company unlawfully interfered with the employee’s FMLA rights. Now the case will move on to determine how much back pay and reimbursement for expenses are appropriate. The court also ruled that the company didn’t act in good faith, so the amount will be doubled (Highman v. Plastic Process Equipment, Inc., ND Ohio, Feb. 2022). For more information about FMLA compliance, check out our Legal Guide, At A Glance: Family and Medical Leave Act, and be sure to connect with your Vigilant Law Group employment attorney for help along the way.