[COLUMN] ‘Absenteeism’ and the employee’s right to intermittent medical leave

Peter Albrecht worked as a psychiatric nurse for University of California Irvine (UCI) Medical Center. In 2007 Peter was seriously injured while restraining a violent patient. Because of his injuries, Peter was unable to work for three years and UCI approved this extended medical leave. He returned to work in October 2010.

In 2011, Peter began to accrue what UCI deemed to be unexcused absences. On January 5, 2012, UCI warned him of substandard attendance due to 5 absences in three months. These were deemed to be a third occurrence under UCI attendance policy, as he had received similar letters in 2005 and 2008. The letter advised Peter, “If you believe any of the absences above qualify as exclusions under the Family & Medical Leave Act (FMLA), please notify me immediately.”

In April 2012, Peter (now 63 years old) was transferred to the Adolescent Partial Hospitalization Program and reported to its director, Paula Martin. On April 4, 2012, Peter received another letter for his absences on March 19 and March 31, 2012. The letter deemed this a fourth occurrence, and once again included the same FMLA leave advisement.

Peter was required to attend staff meetings twice per month, led by Martin. In those meetings, he endured harassing, degrading, and discriminatory comments based on his age and disability. For example, the staff would suggest he was absentminded, mentally slow, forgetful, and out of it. Martin did not attempt to put a stop to those comments.

In June 2012, Martin asked two employees to monitor Peter for the purpose of building a case to fire him. One of those employees was Connor, who testified Martin asked them to keep a written log of complaints against Peter to document reasons for firing him.

In July 2012, Peter received another letter concerning substandard attendance, this time for an absence on July 2, 2012. The letter deemed this a fifth occurrence and contained a similar FMLA leave advisement.

In August 2012, Peter applied for intermittent FMLA medical leave, which was granted. This entitled Peter to take leave twice per month, for up to two days per leave.

In September 2012, Martin met privately with Peter stating she was concerned about his FMLA history and asked him when he planned to retire. Peter said he had no plans of retiring any time soon, and that he had not used his full allotment of intermittent FMLA leave for the year.

In October 2012, Martin completed Peter’s annual evaluation and gave him an average score of “exceeds expectations” on several criteria. She wrote comments that were generally positive.

On February 4, 2013, Martin accused Peter of taking his FMLA leave around holidays. She stated that any FMLA leave taken around holidays from then on would need to be supported by a doctor’s note “to indicate that flare-ups are more likely to occur on or around the holiday and we will attempt to accommodate that.” In the e-mail, she listed seven FMLA absences, which showed that some days of leave were taken near holidays, but others were not.

On March 25, 2013, Martin and the assistant director of neuropsychiatry terminated Peter due to absenteeism. The termination notice identified additional absences of 5 work days. Martin commented that Peter really “needed to retire,” and noted how “disabled” he looked.

Peter sued his employer and alleged, among other things, age and disability discrimination and retaliation in violation of California Family Rights Act (CFRA) and FMLA.

A first jury trial ended with the jury siding with the employer. After the appellate court reversed, a second jury trial was conducted. This time, the second jury sided with Peter, awarding him $495,000 in past lost earnings, $521,000 for future lost earnings, $650,000 for past emotional distress, and $500,000 for future emotional distress, for a total award of $2.166 million.

Even if a medical condition does not limit any major life activities (i.e., there is no disability), an employee is still entitled to reasonable accommodation.  This means allowing the employee to be absent from work for medical treatments or doctor appointments.  The employee is still required to comply with the employer’s attendance policies. Thus, the employer may require the employee to provide a doctor’s note covering time away from work for illness or injury. The employer, however, cannot use medically sanctioned absences as reasons to fire or demote the employee.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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