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Plaintiff Alleges Violation of FMLA for Being Required to Show Mastectomy Scars Before Returning to Work

In a Complaint recently filed in a Florida federal court (Andrea Santiago v. Broward Health), social worker Andrea Santiago alleged that her employer, Broward Health, violated the FMLA when it refused to waive a policy requiring employees who took FMLA leave for surgery to allow an in-house medical clinic to examine their wounds before being allowed to return to work. Ms. Santiago applied for, and was granted, FMLA leave to have a breast biopsy and later for surgery for breast cancer. Following the biopsy, Ms. Santiago had been required to show her breasts to one of her employer’s nurses so she could be cleared to return to work. According to the Complaint, Ms. Santiago found that experience to be “demeaning and humiliating” and did not want to undergo it again after her surgery.

The hospital has justified its policy by saying that it has an interest in clearing employees with open wounds, sutures or staples because of medical procedures. After returning from her mastectomy, Ms. Santiago asked if the examination requirement could be waived. The nurse suggested that it might be waived if she had her doctor write a note stating that she had no open wounds or sutures. Ms. Santiago’s physician provided such a document, but the hospital allegedly continued to refuse to waive the mandatory examination of her chest. The Complaint states that one of the hospital employees told Ms. Santiago that her surgical site was “no different than an appendectomy.” Ms. Santiago even agreed to have her doctor speak directly to her employer about the wound site, in lieu of the examination. According to the complaint, the hospital refused to waive the examination, and when she did not submit to the examination, she was terminated. Ms. Santiago filed her case claiming that Broward Health had violated her FMLA rights by not allowing her to return to work.

While this case is in its very early stages, it is generating a great deal of negative press due to the arresting headline. Employers should be mindful that some flexibility may be necessary in the return to work process and should weigh the value of a policy against the practical results. In this case, even if Ms. Santiago cannot establish an FMLA violation, the hospital may have had some viable options to avoid this ugly topic line.