Termination for Absences Doesn’t Stand Without Written Policy Requiring Doctor’s Notes

25 for 25 in '25

In our look back at 25 cases from each year that we've been in existence, we come to 2001, and a case from Kansas that tested how much an employer needed to have in hand before it "knew" that an employee was missing work due to a work-related injury. Simply Research subscribers have access to the full text of the opinion.

Case

Bausman v. Interstate Brands Corp., 252 F.3d 1111 (10th Cir. 2001)

What Happened

An employee brought a wrongful discharge action against her employer, alleging that it terminated her in retaliation for her filing a workers' compensation claim. A federal District Court ruled in the employer's favor, agreeing that it terminated the employee for violating its attendance policy by not providing doctor's notes to confirm that her absences resulted from a work-related injury.

The employee appealed to the 10th U.S. Circuit Court of Appeals.

Rule of Law

In Kansas, an employer cannot fire an employee in retaliation for that employee filing a workers' compensation claim. The filing of such a claim represents the exercise of a statutory right, per Murphy v. City of Topeka, 630 P.2d 186 (Kan. 1981). Under Kansas case law, allowing an employer to discharge an employee for being absent due to a work-related injury would allow an employer to indirectly fire an employee for filing a workers' compensation claim.

What the 10th Circuit Said

According to the 10th Circuit, the "critical factual question" in the case was whether the employer knew or should have known that the employee was absent on each of the occasions for which she was being fired as a result of her work-related injury.

A pivotal fact in the employee's favor was that nothing in the employer's written attendance policy required a doctor's note to substantiate absence due to a work-related injury or precluded management from excusing an absence as due to work-related injuries by accepting an employee's representations without a doctor's note.

The 10th Circuit faulted the employer as relying on an "unwritten policy" of requiring doctor's notes to excuse absences for reasons related to workers' compensation, particularly as Kansas law directs notice to a "knows or has reason to know" standard.

"The Kansas 'knew or should have known' standard charges an employer with knowledge of those facts concerning an employee's workplace injury reasonably available to the employer at the time," the 10th Circuit wrote. "Kansas law enforces a rule of reason, a rule that must be applied even-handedly in balancing the interests of both the employer and its employees."

The court emphasized that if a doctor's note was required, it should have been clear in the written rules that employees were expected to adhere to.

"If absent third-party verification an employer would discount or reject an employee's assertion of work-related injury, then the request for verification should be explicit and unequivocal, leaving no uncertainty as to the information that is required," the 10th Circuit wrote. "Otherwise, the practice merely becomes a trap for the unwary—a trap that could be relied upon to mask an employer's unlawful retaliatory intent, as is alleged in this case."

The 10th Circuit reversed and remanded the District Court's ruling in the employer's favor.

Takeaway

Under Kansas law, actual knowledge of an employee's absence due to a work-related injury should suffice for purpose of public policy vindicating the statutory workers' compensation remedy, and absent a written directive to the contrary, a doctor's note isn't necessarily required.

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