Job Abandonment??/ADA

We have an employee who misses work and does not call in to notify her supervisor. When her supervisor asked her what the problem was she said she had chronic fatigue syndrom and fibro myolgia. Her supervisor asked for her to provide a note from her doctor saying she had these two conditions. She did not provide him this information. She has not shown up for work in the last two days. She has not called in. Is this job abandonment? or do we have to consider her medical condition (that she has not proved to us).

Thanks

Comments

  • 9 Comments sorted by Votes Date Added
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-02-02 AT 11:04AM (CST)[/font][p]I think she has 'put you on notice' that she has a condition(s) that may be covered by FMLA and ADA; and, the company is obligated to look further into this. Termination is certainly not wise at this juncture. REMOVE the supervisor from the equation at once regarding the ee's medical condition and the ee's need to present documentation. HR needs to run with that ball, not a supervisor. HR should contact the ee by certified mail advising her of her obligations and rights and call her in for conference based on her assertion that she has medical issues which cause attendance problems. Supervisors generally are not trained, nor should they be, in FMLA/ADA intracacies and it could wind up costing the company if a supervisor bumbles his way through this. There is a clearly obvious scenario waiting for you just around the corner if an ee has put the company on notice that she has medical issues and then is absent, and then.....is terminated. Now that she has advised the company of medical issues and they may be attendance related, here's what I would assume: (1) she doesn't really know what's expected of her, (2) she may not trust the supervisor enough to share confidential medical information with him, (3) The supervisor may not have been thorough or legally compliant in his instruction to her, (4) She took him at his word and is out seeking medical advice and documentation, (5) She's sitting in an attorney's office telling her that her supervisor said she was fired if she didn't bring him an excuse tomorrow.
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-02-02 AT 01:02PM (CST)[/font][p]
    I disagree with Don to some extent.

    Don't remove the supervisor from this process. It is the supervisor who needs to be involved. It is the supervisor who needs to set expectations and deadlines and make decisions (with line managment and HR) on the status of the employee. The supervisor is the gatekeeper. You take the supervisor out of the process and you basically have emasculated the supervisor in being able to control employees because it will be seen as HR making decisions not the supervisor.

    What HR should do is work with the supervisor.

    The employee needs to be sent a letter informing her of what is expected and when it is due. The supervisor, not HR, needs to inform her that her absence as of x day is uunauthorized and without pay. She either tells the employee to return to work by such a date or provide acceptable doctor's statement verifying an inability to perform duties of the job by that date. She should note that she had asked for a doctor's note but hasn't received it yet. Thus the letter is a formal instruction to her to return to work or provide acceptable doctor's statement. If neither occurs, then she will be fired. If has has a quesiton or problem with instructions then she is to contact the uspervisor by x date.

    The previous conversations should be referenced, especially about providing the doctor's note (this shows that the letter really isn't the first itme she has been asked for the statement). How has the superivsor been coding the absence for the past few days? If without pay (unauthorized) tell the employee that. If with pay (authorized on sick leave) tell the emplyee that ends pending receipt of verification by the deadline.

    You need chain of command involved, which I assume does not involve HR for this employee because it's the line superviosr and the line manager who probably are going to decide what to do based in part, yes, on HR recommendation. But it's line management and supervision who have to set and enforce expectations and enforce company policies on the employee. You need them involved not only because of this time but because of future incidents with other employees. The supervisor needs to know what to do and how to do it. That's a part of supervision.

    FMLA and/or ADA may be involved at this piont or they may not be. You won't know until you get some medical information.
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-02-02 AT 01:26PM (CST)[/font][p]Woaaaaaaah! Guess we are in two different worlds as far as HR responsibilities vs line supervisor's responsibilities. But lady/gentlemanly debates are healthy and we can all benefit. I've never worked in a place where line supervisors are equipped, expected to or allowed to traverse the FMLA/ADA/Comp minefield. Whether the supervisor was a director of psychiatric nursing, a principal with a Phd, a lead mechanic, a production supervisor with 12th grade or a director of purchasing...none are expected to be able to negotiate these complexities. None where I have been are the decision makers on policy enforcement when it comes to HR policies (attendance/leaves/benefits/etc). I agree wholeheartedly that we work in tandem with the supervisor and in a sense, hand in hand, however, HR professionals are generally the ones who the company has spent thousands of dollars on in HR seminars and Employment Law training. Sorry if I came across as suggesting taking the supervisor totally out of the process and acting in isolation; my intent was to suggest removing that person from the ADA/FMLA minefield. The employment law professionals (JDs) I've worked with would never, ever suggest a line supervisor be the ADA process expediter, legal process facilitator and defense note taker. But, the question was not one of organizational structure. Rather it was should she terminate. I think we both agree on that one. Thanks for raising the hair on the back of my neck. I was having a lazy day in anticipation of a Thursday cookout.x:-)
  • Thanks for the great answers. Would a phone call to employee be appropriate? Or does it have to be a letter?
  • >Thanks for the great answers. Would a phone call to employee be
    >appropriate? Or does it have to be a letter?

    A phone call following the letter might be a warm touch; however, the letter should be certified so that you have a record for production and so that you won't have to recall later what she was told and when. You will never regret having it certified as proof she received it....down the road.

  • [font size="1" color="#FF0000"]LAST EDITED ON 07-02-02 AT 04:30PM (CST)[/font][p]Agree, phone call followed by a letter ocnfirming or indicating the phone call and other phone conversation. With the letter, send a copy regular, first class mail and a copy certified mail, return receipt requested. Most likely she'll get the regular first class mail but won't pick up the certified mail. The unpicked up letter will be returned to you. That will show evidence of the mail delivery.
  • Don't agree with the phone call. Hard to prove what was said when questioned by an attorney. The employee will remember the call as a threat and recall things you did not say. Stick to what you can prove, a letter!
  • I agree with a lot you have heard with other so I won't repeat their suggestions.
    One thing you might consider doing is in your FMLA notice letter to send the employee the Labor Dept Certification form for them to have their doctor complete and return. (Don't say get me a doctors note). Give them the 20 day time frame for retuning it.
    I also cover a lot of other things in my letter besides FMLA. I discuss who they should call in to (which is usually the Supv. May have to train the supv. as to what they can ask and what information they should get when the employee calls in.)Explain consequences as to what happens if they don't follow the company's policy (and FMLA requirement) (which we call self termination than firing.) Let them know who they should call if they have questions (which is usually HR)on any subject in the letter. Will they receive any pay while out? Do you have a disability or sick pay program? What happens to their benefits? How much do they need to pay to continue them and who should it be mailed to and made out to?
    Looks as if you have several issues, your company's attendance policy, sick pay/disability program, absence call in policy, FMLA, etc. You need to sort them all out and address each, making sure that they don't infringe on the FMLA. Don't use this as a way to get rid of an employee. That will hang you.
    Also, if your employee has been out before and done this and no one called it to his attention, your employee may think they are doing the right thing.
    E Wart, GA
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