Sometimes the left hand doesn’t know what the right hand is doing. And in a big company, there are often more than two hands. In a recent case involving a chemist at an oil company, a worker, his co-worker, their boss, and HR all ended up at odds.

Long cast of characters and incidents

·         A chemist was trying to frequently visit his son, upset over his parents’ divorce, at a local daycare on his lunch hour. As it was a 30-minute lunch period, he was often late coming back.

·         The chemist’s boss was managing a busy department in the midst of an audit and needed all hands on deck. The boss put the chemist on a performance improvement plan (PIP) regarding lunch period absences and for improperly filling out time cards related to the lunch period. The chemist came back late from lunch during the PIP and was suspended for five days under the terms of the PIP.

·         The chemist approached the Employee Assistance Plan (EAP) officer, who told the chemist to call in sick until he could be enrolled in the EAP fully and go out on stress-related FMLA leave. A doctor told the chemist (and the company) that the chemist was unable to work because of his stress-level and should take FMLA leave for treatment.

·         The plant manager thought this was an end-run around the PIP suspension.

·         A co-worker said the chemist told him that he (the chemist) was going to fake a nervous breakdown to go out on disability.

·         The chemist was told to go to the company’s nurses’ station, which resulted in an argument between the worker and the nurses over filling out a form.

·         The chemist’s boss said this situation might escalate into workplace violence, and contacted security, which banned the chemist from the premises.

Whew!

Missed the forest for the trees

Here’s a company with sophisticated programs in place, and well-trained people in place. Yet the problems snowballed.

The company fired the chemist under the terms of the PIP, but didn’t mention the workplace violence issue in the letter. The letter mentioned the co-worker who said the chemist would fake an illness. It also noted the chemist took home during his suspension company belongings, such as a blackberry and laptop.

The chemist sued, saying it was retaliation for filing for FMLA leave. The company argued it fired the worker under the terms of the PIP. A federal district court agreed, granting summary judgment to the company.

Not so fast. An appeals court reversed, noting:

1.       The company failed to investigate the co-workers’ claims the chemist was faking illiness, taking the worker’s statements at face value and not asking the chemist about them.

2.       The company’s own EAP’s doctor said the worker was suffering from a serious illness, and

3.       The company didn’t ask for a second opinion from another doctor about the FMLA-related illnesses.

A failure to investigate the claims thoroughly could mean the firing was a pretext for retaliation, the court ruled: Send it to a jury.

HR needs to remind people of the basics

Action steps: Insist on investigations. The company here did a lot of things correctly, from the PIP to the EAP, but missed an important step: Investigate the FMLA-related illness itself. A second opinion on the medical issues would have likely settled the issue and gotten HR involved. Instead, facing a jury trial, the company will likely settle on the courthouse steps.

Cite: Ion v. Chevron USA, No. 12-60682, 5^th Cir., 9/26/13.

See our webinar: Managing Leave of Absence, Part I: FMLA