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By June 1, 2009No Comments

Falsification of Doctor’s Note Prevents FMLA Leave

In Smith v. Hope School, the Court of Appeals for the Seventh Circuit held that an employee’s falsification of medical paperwork precluded her from being entitled to FMLA leave.

After suffering a work-related injury, the plaintiff asked for and was given FMLA paperwork, which she gave to her treating physician. When the plaintiff picked up her FMLA paperwork from the doctor’s office, she added to the doctor’s description of her condition the words “plus previous depression” without the doctor’s approval or permission. Her doctor had never diagnosed her with depression. The plaintiff also backdated her portion of the signature line of the FMLA form and completed a separate Attending Physicians Statement in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression.

Upon receipt of the form, the employer called the doctor about the possible alteration, and the doctor’s office confirmed the alteration. The employer did not approve the FMLA leave request, and the plaintiff was subsequently terminated for unexcused absences. The plaintiff sued the employer claiming interference with her FMLA rights. The Court held, however, that the employer had not interfered with the plaintiffs rights under the FMLA. Because the plaintiff added an undiagnosed condition to her medical care providers certification form, without the knowledge or approval of her physician, the employer was justified in denying her FMLA leave. The Seventh Circuit limited its holding to more egregious alterations of FMLA paperwork, and did not address the question of whether other, more insignificant alterations, such as correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician, would result in a similar ruling.

Bottom line: You now have the right to contact a health care provider’s office directly about the authenticity of any medical report. Unlike the rest of the country, California employers should not contact the employee’s health care provider directly to verify leave requests.

Paying to Show Up at Election Violates NLRB

In DLC Corp., D/B/A Tea Party Concerts, the NLRB confirmed that it’s a violation of the NLRA to pay off-duty employees to come to the workplace in order to vote in an NLRB election. The union sought to represent the employer’s stagehands, who worked primarily during the summer months. The union filed an election petition and election dates were designated.

A month before the election, the employer sent a letter to all eligible voters, in which it explained some of the procedures for the upcoming election and why the employer was opposed to the union. In addition, the letter encouraged off-duty employees to come to work and vote in the election and promised that the employees would be paid for four hours on that day. Ten of the 56 off-duty employees requested and received four hours pay for voting in the election. The union lost the election by five votes.

The Board held, under controlling labor law precedent, that a party engages in objectionable conduct by paying employees to attend the election unless the payment is reimbursement of actual transportation expenses. In this case, the employer explicitly offered to provide off-duty stagehands with four hours of pay in exchange for coming in to the polling location to vote. The Board held that the offer was substantial and was not linked to reimbursement for travel or other costs. Moreover, the number of employees potentially affected was not de minimis. A new election was ordered.

Wearing Headscarf Not a Reasonable Religious Accommodation

In Webb v. City of Philadelphia, the Court of Appeals for the Third Circuit held that a Muslim police officer’s request to wear a headscarf while in uniform would create an undue hardship for the employer and therefore, it was not religious discrimination to deny her request. The plaintiff, a female police officer, requested permission from her commanding officer to wear a headscarf (a khimar or hijaab, a traditional head covering worn by Muslim women) while in uniform and on duty. The headscarf did not cover her face or her ears, but would cover her head and the back of her neck. The police department denied her request based on its directive outlining the appropriate uniforms and equipment to be worn by the officers.

Based on the denial, the plaintiff filed a charge of religious discrimination with the EEOC and the Pennsylvania Human Relations Commission. While the matter was pending before the EEOC, the plaintiff arrived at work wearing her headscarf. She refused to remove it when requested and was sent home for failing to comply with the police department’s directive. These events were repeated during the next several days. The plaintiff was informed that her conduct could lead to disciplinary action. Thereafter, she continued to report to work wearing the headscarf and was suspended for 13 days. The Third Circuit agreed with the lower court’s holding in favor of the police department. Although Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion, an employer need not accommodate the employee if it would result in an undue hardship. The police department needed to maintain the perception of impartiality of its work force. Further, uniform requirements are crucial to the safety of officers. The Court held that the City would suffer undue hardship if required to grant the plaintiffs requested religious accommodation.

Bottom line: This court did an excellent job of explaining the factors to consider before declaring that clothing is inappropriate.

Thanks to the Worklaw Member firm of Shawe Rosenthal for helping with these case summaries.