Shock Treatment

SandiF

We have an employee who has been out on FMLA because she tried to commit suicide and has been recieving shock treatments. Her 12 weeks is up on November 7th. We had felt that she would not be released by her physician when her leave was up as we have kept in touch and she seems to still be having memory and concentration problems. Yesterday she told us that she thinks she will be back in time. She has told us how much her job means to her, and her doctor at one point told us that her job meant everything to her. If she is released to work, we are worried she will continue to have performance issues; she's never been one of our better employees and she has always struggled with mental stability.

If she is not performing as she should, we are worried about firing her. We are very concerned that she will try to commit suicide again. I know we'll need to look at performance issues as the reason to let her go, but we certainly don't want to be the cause of her hurting herself again.

We think the doctor may release her because he does know how much her job means to her, and he may be feeling that getting back to it will be good for her. Her job requires a lot of concentration and attention to detail. (We don't have a position she can do that is less demanding). Can we explain this to the physician to make sure he understands this? If she returns and we eventually have to let her go, how do we do that when we are concerned about what she may do to herself?

We currently have another employee who used up her FMLA leave and we are holding her job an additional 90 days. (She's waiting for a kidney transplant). Have we now set a precedent? What are the implications of ADA?
She may return and do a wonderful job; but we don't think this will happen. We don't want to be the cause of her doing something drastic, but we also need an employee who can perform the job.

Thank you in advance. You are a great group of people.

Leslie

Treat her return to work like any other. Define for the doctor what the job is, her prior deficiencies, and what is likely to happen should those continue. He needs to understand the repercussions if he is letting her come back possibly early because the job is good for her self-esteem. Isn't going to be very good if she ends up discharged in a couple months.

Yes you are setting a precedent with allowing your employee waiting for a kidney transplant an extra ninety days - not just for this FMLA but for all of them.

System

Leslie is right on all three points. The doctor should know the stress level of her job. The doctor will not view the job as therapeutic for her. We provide physicians with a copy of the job description and request a release with no restrictions.

Absolutely treat her like any other employee which means documenting poor performance (but don't go on a witch hunt to get rid of her). Make your documentation factual and fair and do not refer to her absence or illness.

Yes, the presidence is now set. You must allow her 90 days in addition to her leave also.

Good luck.

sonny

I agree with the others and will add that you should not operate under the fear that you will cause her to do something drastic. Ultimately, that will be her choice and decision. This may well go south or not. Give her a chnace and focus on performance. If she is hell bent on self destruction it will occur regardless.

Crout

You're correct: you should never have allowed the 90-day extension beyond the FMLA standard. When companies willingly violate their own policies trouble usually follows, UNLESS it's part of a reasonable accomodation for an individual. In regard to the first EE, make sure that the doctor has a job description so he/she can make an informed determination that the EE is fit to return to work. Then take it one step at a time and follow your normal procedures. I wouldn't get too bogged down in thinking about possible scenerios....you could play that game all day long and it often only serves to paralyze the decision making process....HOWEVER, if I were you I would give some thought as to where you could possibly place this person in the event that this turns into an ADA claim. I know you said that you have no other position available, but that determination should come at the END of a brain-storming process that MUST include the EE.

jrzgrl

I agree that the 90 days should not have been granted. A court will expect you to give 90 days to the rest of your FMLA employees if requested. Consistency is key, and past practices will come into play. It would be wise to restate the policy, or inform EE's in some way that *going forward*, all they are entitled to is the 12 weeks FMLA gives them.

Don D

SF: Don't view this as harsh or even personalize it. But, I see your post as a classic example of what can happen when the employer views FMLA, as an example, from an emotional perspective. Your post contains lots of information that, although well intended, is irrelevant to the issue of FMLA. Although I don't advocate we lose our 'feeling side', we can't make right headed decisions when we jumble our thought process with a litany of personalized issues and what-ifs. The other posts were right that you should provide the physician with a detailed job description; but, NO, you should not attempt to 'talk' to him or make him especially aware in any manner what you 'think' about her condition or the propensity that she might self destruct if you have her back on duty. That's why the psychiatrist makes a mil per year. You simply must dispense with all of these what-ifs immediately and proceed in concert with the law and your policies. Any mental health professional professional will tell you that returning her to work could be the 'best' thing that could happen to her or the 'worst' thing that could happen to her. Leave that thought process to them.

I disagree with others about the way precedents develop and are to be followed. Precedents revolve around 'similarities'. Simply because your company made a business decision to extend a period of absence in one situation by no means obligates you to recognize that extension period as a new company practice or policy for all other situations.

This employee will probably be ADA protected at the exhaustion of her FMLA, unless she CANNOT work with accommodation and, through that interractive process, the company must make a decision on the reasonableness of that; but, the condition that allowed her FMLA absence is not part of the equation.

Shadowfax

I'm confused. Are some of you saying we can contact her dr and ive him additional info and hope he doesnt return her? Aren't we limited in contaact with and FMLA dr to our dr talking to hers, or getting an additional opinion? Or, are we talking about a routine fitness for duty return to work, done by a dr other than the FMLA dr. Hasn't he already said her serious healt condition ends on the 7th? Do you typically send empee to another dr to ok return to work after FMLA dr has said ok? If not, I'm thinking that's a bigger precedent than waiting additional 90 days in a particular instance.

Don D

We are negligent if we do not see to it that the treating physician has immediate access to a comprehensive, written job description, upon which he can base his assessment of her ability to return to work. In this case, we are negligent toward our responsibility to the company since 'we' do not want her returned. But, in any event, he should have it if you expect a proper conclusion from him. That's not the same as us contacting her physician. Ideally this sort of document passes through the ee to the physician. But, if not, I would have our office fax it to the nurse for inclusion in her file. That's not a discussion of her medical issues. If this were a case where I truly doubted the conclusion of her physician, yes, I would set her up for a second opinion with a physician of the company's choice and pay for it. Since this is a psychiatric issue, in my opinion you would not get one shrink to contradict the conclusion of another.

Shadowfax

Thanks Don, I like the point about it not being a discussion of med issues. I have always tried to stay out of the med loop on the FMLA cases, but think you have shown us a far more useful and efficient way to get useful information gon on a two way street.

Leslie

And sometimes the job description needs to be extremely descriptive. I had an employee whose job was two fold. He did plant maintenance which involves lugging tools around and climbing to get to the area that needs maintenance. He was also a heavy equipment operator. He didn't like the plant maintenance so got clearance with limitations of no climbing or lifting. The note stated flat out he could operate equipment. I had to contact the doctor and explain that in order to get into the pieces of equipment we were talking about he had to climb a ladder, grab onto something in the cab and yank himself in. Well guess what - the employee had not related that little bit of info.

An employee who wants to return to work - desperately it appears - may fail to report exactly what the job entails and/or the problems it was giving her previously - and at times the job description gives leeway to do so. I never expected to have to explain to a doctor that a heavy equipment operator can't just hop into the piece of equipment like it's a 1/2 ton Chevy.