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More workers facing a sick leave conundrum

When it comes to taking time off for medical reasons, many workers face a conundrum, and it’s only gotten worse during this economic downturn.

Kara Jorud, 47, was recovering from a double mastectomy in the summer of 2008 when her boss started calling her constantly, pressuring her to return to work.

Jorud, then a store manager at crafts giant Michaels in Boca Raton, Fla., had surgery on Aug. 19 and the tubes in her chest draining fluids were removed on Sept. 13. She returned to work two days later, even though, she said, “I wasn’t ready.”

Her district manager was waiting for her at the door of the store.

Jorud knew she was legally entitled to a few months off to recuperate following her mastectomy, but she was torn, both physically and mentally.

“I wasn’t capable of working 10- to 12-hour days because I couldn’t even raise my arms, being cut across every muscle in my chest,” she explained. “But, I knew I had to be back at work to save my job.”

Despite her efforts, she was fired for violating company policy by bringing her husband in to work to help her lift boxes.

Many workers like Jorud have faced this conundrum, and it’s only gotten worse during this economic downturn as companies cut back on staffing, leaving fewer people with more work, workplace experts contend. That makes it even harder to take time off to deal with a medical condition, whether it’s their own or that of a family member.

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“Everyone is being squeezed for as much productivity as possible,” said Marcia McCormick, an associate professor at St. Louis University School of Law and an editor of the Workplace Prof Blog. Some employers, she continued, may believe they can’t afford to allow people to take the leave they might be entitled to and some intentionally, or unintentionally, put pressure on workers to return to work soon after medical issue, or not take time off at all.

But the nation’s labor laws are pretty clear, she added. Workers are allowed under federal law (and in some cases state law) to take leave for their own medical needs, or those of their family members, although it’s typically unpaid.

In the case of Jorud, she decided to fight her termination and the pressure she felt leading up to it by suing the company. And earlier this month a court awarded her $8.1 million, finding that Michaels wrongly fired her and that the company violated a federal labor law (the Family and Medical Leave Act, or FMLA) entitling her to time off.

“You can’t tell someone they cannot go out on leave,” stressed Jorud’s attorney Brian McPherson with Gunster, a law firm in West Palm Beach, Fla.

Michaels officials have not made a decision on whether they’ll appeal the case; and as for the verdict, Shawn Hearn, Michaels’ senior vice president of human resources, said in a statement that “though unsuccessful at trial, Michaels believed then and believes now that the circumstances warranted the actions taken with regard to Kara Jorud.”

Under the FMLA, workers can take up to 12 weeks of unpaid leave, but only if they work at a company with 50 or more employees and you’ve worked for an employer for a year or more. Additional federal requirements for medical leave can also come under the Americans With Disabilities Act that covers workers who are disabled, work for firms with 15 or more employees, and can provide more than the 12 weeks covered by the FMLA, all unpaid.

The number of FMLA violation complaints filed with the Department of Labor in 2009 was 1,841, down slightly from 1,889 from the previous year. The Equal Employment Opportunity Commission, which deals with ADA enforcement in the workplace, does not break out medical leave complaints.

But last year, Sears, Roebuck and Co. paid $6.2 million to resolve a class action suit brought by the Equal Employment Opportunity Commission because it fired hundreds of workers after their leave benefits were exhausted instead of attempting to come up with a leave plan.

The majority of employers have a formal process in place for employees who are seeking medical leave and typically go through the human resource department, said Gregory Rasin, an employment attorney for Proskauer.

“Most major companies are pretty in tune with their FMLA obligations,” he added.

Unfortunately, “sometimes HR doesn’t know what’s going on, especially in decentralized organizations,” said Karen Mcleese, vice president of Employee Benefit Regulatory Affairs for CBIZ. “That’s why it’s very important that the employer train its population and create a culture of understanding.”

Even if such corporate protocols work, however, the fear of losing your job, and the fact that workers don’t get paid for the time off, are two of the main factors participation has long been anemic.

The most recent poll by the Department of Labor, that oversees FMLA, was released in 2001 and found:

  • Almost one-third of all workers who needed leave but did not take it cited worries about losing their job as a reason for not taking leave.
  • In 2000, a higher proportion of those who needed leave cited the lack of pay as one of the reasons they did not take leave than was the case in 1995. And almost 88 percent of those who needed leave said they would have taken leave if they had received some or additional pay.

The United States is one of only a handful of industrialized nations that does not provide workers with paid leave under federal law. Liberia, Papua New Guinea and Swaziland also don’t have mandatory paid time off. However, Holland gives workers 16 weeks of sick leave at 100 percent of salary, and Sweden offers 56 weeks of parental leave at full salary, according to a Catalyst study from last year.

California, Washington, and New Jersey are among the pioneer states that have passed laws for paid leave, providing partial pay for employees who take time off through state insurance funds.

But there is a tremendous need to implement paid leave nationally, said Portia Wu, vice president of the National Partnership for Women and Families, because “families are stretched worse than they’ve ever been.”

“Employees don’t choose to get cancer or have strokes,” she said, “and if they need time off they could end up in debt or lose their house. It’s a dire situation.”

The other issue for workers is ending up with the so called “flexibility stigma,” in which workers fear taking time off will negatively impact their career, said Joan Williams, director of the Center for WorkLife Law.

“Very often, employers very subtly discourage workers from taking leave,” she explained. “They set up this assumption that if you’re really were serious about your job you’d be devoted and always available. But that’s science fiction. If you need a double mastectomy, you can’t be at work in a flash.”

Jorud ended up compromising her health by returning to work quickly, but the pressure she felt from her manager clouded her judgment, which was already impaired because she was struggling with chemo treatments, she said.

“I was throwing up like crazy and it blew my mind that he wanted me to return,” Jorud said of her manager. “I was so scared of losing my job I literally staggered out the door to get there.”