The Essential Guide to Family & Medical Leave

156 | the essential guide to family and medical leave
Lessons from the
Real World
A company that didn’t request a medical
certification can’t later dispute the employee’s
serious health condition.
Katherine Thorson worked in the packing and shipping department of
Gemini, Inc, a company that manufactures plastic signs. The company had a
policy that employees who were absent for more than 5% of their scheduled
hours in a rolling 12-month period could be fired for excessive absenteeism.
Thorson left work and went to the doctor on Wednesday, February 2,
complaining of stomach cramps and diarrhea. She came back to work the
following Monday, February 7, with a doctor’s note saying “no work” until
February 7. After a few hours, she returned to the doctor with stomach pain.
The doctor suspected a peptic ulcer or gallbladder disease and ordered some
tests for that Friday. The following Monday, February 14, Thorson returned
to work, again with a doctor’s note saying “no work” until the 14th. That
Friday, she was fired for excessive absences. She was eventually diagnosed
with several stress-related conditions.
When Thorson sued for violation of the FMLA, Gemini argued, among
other things, that Thorson didn’t have a serious health condition because
she was not incapacitated—in other words, she didn’t really have to miss
work because of her condition. The court found that Gemini wasn’t entitled
to contest this issue because it failed to request a medical certification at the
time. Thorson’s own doctor’s notes said “no work”; if Gemini doubted this
statement, it was entitled to request a certification. Because it didn’t exercise
this right, the court refused to credit evidence that another physician, whose
opinion was sought months after the fact for use in the lawsuit, said there
was “no obvious reason” why Thorson had to miss work.
Thorson v. Gemini, Inc., 205 F.3d 370 (8 th Cir. 2000).