Arbitration -- Absent When In Jail

Has anyone had a case go to arbitration or a court in which an employee was in jail for a period longer than three days as a result of a conviction and tried to get that time covered under FMLA with a doctor's note? Or, has anyone heard of or read about such a case.

We have an arbitration case like this and our position is that the employee was absent because he was in jail, and, regardless of whether he was sick or well, he was not avail because of his incarceration.

The union's position is that it doesn't matter where the employee was if he was sick and had a doctor's note stating that the jailed employee was under his care during the period of incarceration.

The interesting thing is that when the employee could not schedule vacation for the period of his incarceration (4 days), he stated, "I know what I need to do." Everyone knew that he meant that he would get a doctor's note to cover the time so he was told not to falsify record.

Here are some details:
4/17 -- states, "I know what I need to do."

1st day missed (4/22/03) -- we receive no call from the employee, he's says his step-mother called, but we didn't believe that.

2nd day missed (4/23/03) -- we receive call from a woman who states that he will be out indefinite, sick

fast forward to 4/30/03 -- he calls his manager to say that he will be in later that day to provide documentation regarding his absence. He doesn't show

5/2/03 -- employee meets with management and provides doctor's note stating under doctor's care 4/18 through 4/30, while claiming that he did not go to jail because he had his incarceration dates changed to serve it on weekends. We told him that we would verify with the jail. Employee requested FMLA paper work, which we gave to him.

5/2/03 -- prison officials confirm the employee was in jail.

Any feedback on experiences like this is appreciated.


  • 12 Comments sorted by Votes Date Added
  • I am amazed! Can you verify that this is a real doctor? Just because the employee was treated by a Doctor does not mean that the medical condition rose to the level of serious as defined by the Act. I know the three day rule looks like it could apply, but did the doctor fill out the FML certification on the DOL form?

    If so, perhaps you can pay for a second opinion to determine if the condition rose to that level?

    I have not heard of a situation like this so I am grasping a bit, but if everything else checks out, the courts will decide the answer. I think both perspectives have some level of validity, but I cannot see the courts giving FML protection to inmates.
  • I would relax.............if you have documentations showing he was in jail.........and the fact that he lied about jail, did not show or call in etc.
    The employee may want to fight the issue, the union may back them, but I would like to think that even a moron of an arbitrator will rule correctly.
    Once in front of the arbitrator, I would get him to relate that he changed his jail to coincide with weekends, get the lie on the record in front of the arbitrator, I would also lean on the doctors office..........but that is me.
    Let us know how it turns out.
    My $0.02 worth.
    DJ The Balloonman
  • I agree. If your company is willing to split the cost of an arbitrator, go for it. Backing off will send a sonic-boom message to the union and it's members. I'd much rather have a moron arbitrator make me take him back than back down on this one.
  • What do your policies and labor agreement state regarding use of sick leave and arrest? Does an employee need to get approval prior to taking sick leave. Can it be retro'd? What was he in jail for? Does his arrest conflict with his job? (For example was he arrested for child molestation and his job with your company is as a day care worker). Is the employee required to tell his employer that he/she has been arrested and for what?
  • You're relatively new and I don't want to offend you. So, don't internalize my remarks. Just let them bounce off. The issue has nothing to do with what the contract might or might not say about sick leave or being in jail or arrest. Or retro-ing. It could not matter less what he was in jail FOR. I can't imagine the relevance of your question, "Does his arrest conflict with his job?" Hell, he ain't at work. Of course it conflicts with his job. It doesn't matter what the arrest was for or whether he was required to tell his employer why he was arrested or whether he molested a child or stole snuff from an old woman at the county fair.

    The issue here is attendance. The man is not at work. His job is at work. He's not there. He's somewhere else. He's in jail. And now he's lied about the fact that he was in jail, disguising it as illness and trying to translate that to FMLA, in collusion with either a lying doctor or a stolen note pad. The violation is of the attendance policy and he has lied to conceal that. It's relatively simply to prove the lie and support the termination and win at arbitration.

  • I think it's probably too late, but I would have had the employee have his doctor send the FMLA certification directly to the company, rather than allow him to hand carry it. If it's a valid FMLA certification, I'm not sure the fact that he was also in jail would negate the FMLA if the illness was legitimate.

    We had a similar situation, but the employee was on a valid disability prior to be arrested (very long, sordid story) and our disability provider had to discontinue his benefits because his doctor couldn't see him in jail to send the appropriate medical info to continue his diability benefits. However, we kept him on an unpaid disability leave (consistent with policy because the doctor also couldn't release him without seeing him). Eventually he was released, saw his doctor, and got back on disability.
  • WHOA: You fast forwarded to quickly, what happened on 4/23/03 to 4/30/03? Two more days of failure to call in and report for his own person and the ee would now be an x-ee with 3 days no call and on the 4th day of "no show and no call" he is history. All other information is 2nd dary to his proving he should have not been terminated under our absentee policy. FMLA IS NOT AVAILABLE TO NON-EMPLOYED INDIVIDUALS.

  • I wanted to provide a follow up on this issue.

    We won this case. Unfortunately, the arbitrator did not really need to answer the question about the incarceration vs... sick issue. This is what he said about that:
    "Plant Rule #11 applies to employees who miss work due to incarceration. Clearly the employee missed scheduled work, the first day of which was April 22, 2003, because he was incarcerated. This is precisely what the rule in intended to cover. It does not apply to employees who do not miss work when they are incarcerated.[Mike's comment: we never claimed that.] If the employee had been able to get one of the three employees who already have received approved vacation when he asked for it on April 17, 2003, he would not have missed work due to incarceration and he would not have violated this rule. [Mike's comment: We gave the employee the names of the employees who already had the vacation scheduled.] Since the employee did miss work during the period of time that he was scheduled to work, the only remaining question in terms of the applicability of this rule is whether he was otherwise justified in not coming to work despite being incarcerated during this period. That determination is related to the application of the attendance policy. [Mike's comment: Maybe he is addressing this issue? If he found other justification for his absence, such as medical reasons, he may have ruled that being incarcerated had nothing to do with the absence; rather, the absence was excused for other reason's, therefore, he did not violate the rule. Fortunately for us, he ruled that he violated provisions of a special review under the attendance policy that required him to get FMLA leaves pre-approved, but he did not do that on a timely basis.]

    I would have liked for the arbitrator to have said that the incarceration caused the absence regardless of his alleged medical condition at the time of the accident. Had the grievant not been on a special review we may have ended up having to take this clown back to work. I think this opens the door for employees who need to go to jail to just get doctor's notes to cover their absence while they are in jail. How long can that go on? WOW!!

  • I think this opens the door for employees who need to go to jail to just get doctor's notes to cover their absence while they are in jail.

    I'm curious - do you often have employees in jail? What industry are you in?

  • See not all judges and arbitrators are morons!!!!! What a relief. Congrats. Now if the arbitrator in the Terell Owens case will tell him tough you play for Baltimore this weekend and you are not a free agent I will have even more faith in the system.
    My $0.02 worth.
    DJ The Balloonman
  • [font size="1" color="#FF0000"]LAST EDITED ON 03-10-04 AT 03:23PM (CST)[/font][br][br]Here's the response I would give to the union's contention:

    Under Section 29CFR825.307(a)(2):

    An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense. Pending receipt of the second or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits. If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies. The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer."

    Since you question the validity of the medical certificaiton given that he was roignally in jail, clearly the emplyer has a right to get a seocnd opionon. So, if the union is maintaining that it's the medical condition that prevents the emplyee from working, then the emplyee referred for a seocnd opinoin and see if he'll be released from jail. The fact that he can't get a seoncd opnion would indicate that he isn't absent because of illness but because he's jail and not avaialble to either be examined by another physician.

    FMLA requires the employee be unable to work because of the serious health condition. Absent that would he be able to work at this point? No.

    29CFR825.112(a): "Because of a serious health condition that makes the employee unable to perform the functions of the employee's job."

    Also, the arbitrator's deicsion does show that most arbitratros do see the games that are played and do wind up doing the "right thing."
  • It happened to me about a year ago. The EE requested a one-month medical leave to have surgery on his knee. In reality he was serving a one-month sentence for check forgery. It all fell through when his Probation Officer called me to verify that the EE could list our company as his work release option. As I recall, it went to a Stage 1 Grievance, which I prompty denied, and even our union wasn't stupid enough to go to arbitration over it. Do not give in on this.
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