There may be nothing more traumatic than the sexual assault of your child. Certainly, such a horrific incident would have emotional, and possibly physical, effects on the parents as well as the child. But, are employees allowed to take time off to deal with such an event? If so, are employees protected from discrimination or retaliation if they take medical leave to recover from this type of family trauma? That is the issue recently addressed in the case of Nelson v. Clermont County Veterans Service Commission. The Ohio federal court found that FMLA protection should be extended to an employee who was forced to endure her daughter being the victim of a sexual assault.
Kris Nelson's request for FMLA leave and subsequent termination
According to the lawsuit, and Kris Nelson's employer, her work performance began to decline in 2009. She was not finishing her work, was using her computer for non-work activities. They said she lacked initiative and failed to follow through on her tasks. In August 2009, in an effort to explain her performance, Nelson informed her employer that her teenage daughter had been sexually assaulted a few months prior. She requested leave time to care for her daughter and to deal with her own issues. According to Nelson's doctor, Nelson suffered from crying spells, lack of energy and the inability to concentrate.
Nelson's request was granted. While on leave, Nelson's employer found what it believed was evidence that Nelson had been submitting inaccurate timesheets and concealing unauthorized overtime. After Nelson's five weeks of leave time ended, she returned to work, but began bringing her daughter to work with her every day. Nelson's supervisor told her that she had "to choose between caring for her daughter or keeping her job by November 18, 2009." On November 17, 2009, Nelson proposed a 35-hour work week schedule to her supervisor. On November 18, 2009, a meeting was held to discuss Nelson's performance. She was subsequently suspended, pending a pre-disciplinary hearing. Nelson was ultimately terminated.
The Court's decision regarding Nelson's FMLA leave
Nelson filed a lawsuit alleging FMLA retaliation and interference claim, among other claims. Nelson's employer filed a motion for summary judgment, seeking to have her FMLA claims dismissed. The Ohio court found that there was sufficient evidence for a jury to find that Nelson's employer did, in fact, interfere with her FMLA rights and retaliate against her exercising those rights. This decision demonstrates how courts are continuing to broaden their standards for what constitutes a serious health condition.
Generally speaking, a "serious health condition" means an illness, injury, impairment, or physical or mental condition that requires inpatient care, absence and treatment for more than three calendar days, chronic conditions, or permanent or long-term incapacity. Most likely, this case will not make employers very happy, as it seems to interpret the term "serious health condition" rather broadly. As for employees, if you have any type of physical or mental condition that has affected your ability to work, and your employer disciplines or terminates you because of it, contact an employment law attorney to discuss your rights.
If you feel you have been the victim of employment discrimination, or if you have any questions regarding your FMLA rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.