Heads Up: Two Recent Cases Involving the FMLA

Has the employer in this scenario appropriately stayed clear of a discussion with the employee about a medical condition? Most would say yes. Either because the Americans with Disabilities Act defines 'disabled' as including 'perceived as disabled,' or because of HIPAA's protection of the privacy of personal health information, or because of a general preference not to become involved in a co-worker's or subordinate's personal life, most employers intentionally refrain from delving into employees' personal medical histories or making assumptions about employees' health status. Rather, employers generally prefer to focus exclusively on their employees' work conduct. A manager need not know why an employee is out of work, but only that he or she is out of work for medical reasons deemed legitimate by a health care provider.

Two recently decided cases, however, may be viewed as challenging this approach to employees with disclosed or apparent medical conditions. Both cases dispute the conventional wisdom that employers should not make assumptions about medical conditions or ask employees about medical conditions until an employee has affirmatively notified the employer about the definite need for a leave of absence. This article reviews these two cases and identifies steps that employers can take to ensure that they are meeting all their statutory obligations to employees.