Disciplinary action, Worker's Comp, FMLA

Jocelyn

We began disciplining an employee in April in regards to absenteeism and tardiness. Since January she has had 15 absences. Some of these we weeded out of the count beacuse she did receive last minute permission to have off and claims to go to counseling one day a week. She still ends up with 6 absences and numerous tardies. In May, after many attempts to get her to change her pattern through disciplinary actions we suggested a personal leave of absence to get her act in order. She refused to take it because we don't guarantee their job back. I also suggested she see a doctor about recurring migraines she claims to have. These occur on Mondays. Her counseling in on Tuedays, hence she gets a 3-4 day weekend. We've pointed out the pattern to her. In July she asked about the leave. We told her about the required 30day notice and that she had no leave time available so it would be unpaid. On her next absence we suspended her for 3 days and asked for verification of counseling appointments. We also informed her that she may have thought she'd been approved for a 30 day leave, but that a scribbled scrap of paper given to her supervisor did not mean approval so therefore she had to start over with the proper procedure. A few days later she claimed to have hurt her back assisting a resident. She has been off on worker's comp the entire time she had thought she'd be on personal leave which is the month of August. We designated this leave FMLA because she gets Phys. Therapy 3x a week as well as injections. She and her doctor refuse to do the FMLA paperwork. The dr. because she has told him she is on a forced personal leave, and she because she claims ignorance about FMLA although she's had this explained to her twice before in addition to receiving the policies and forms. It is now the time she would have been back from a leave had it been approved and the dr. is releasing her to work because he can't do anything for her problem. We've informed her that the disciplinary action still applies upon her return meaning on her next absence or tardy she will be terminated. Any advice?

Dianna

Wow. My first thought is to consult with a good employment law attorney here, because it sounds like you have someone who might really be "playing the system", and you also have several issues involved, and you don't want to get yourself or your company tangled up in the web.

First, you have the absenteeism/tardiness issue. Hopefully, you have a written policy regarding this issue at your company. If so, follow the policy to the letter, and be consistent across the board with all your other employees. Be very careful if for some reason you do not have a written policy, and consult an attorney.

Regarding FMLA - FMLA states that you have to work 1250 hours the previous year to be eligible. A certificate of Physician or Practitioner is required at least 30 days prior to approving non-emergency leave, but in a medical emergency, it needs to be provided as soon as possible. Considering that she is eligible for FMLA, absences/tardies tied into FMLA CANNOT be held against her, or you might be looking at a retaliation lawsuit. You might also have to take the Americans With Disabilities act into account with the migraines she says she suffers with, as you would be required to offer her a reasonable accommodation for this and provide it as long as it does not provide an undue hardship on the company (this needs to be provable).

With the Worker's Comp issue on her back, I believe that FMLA and Worker's Comp. can run concurrently, and maybe (if this is the case), you can write a letter to her doctor explaining the situation.

In all things - document, document, document. Watch the retaliation area, and don't hold absences tied to FMLA or Worker's Comp against her.

Quite a confusing situation - I wish you luck!

I don't believe that counseling would apply under