Employment Law

aspen29

Dear Forum Friends:

We are facing a difficult situation with one of our employee. This ee (union member) involved in an auto accident (outside the work area). We understand ee is involved in a law suit for the damages and currently ee is under the care of chiropractor. Meanwhile, the ee utilized few weeks of FMLA at the time of accident and still there is FMLA balance.

On January 28th, the ee informed us that ee will
be out for 3 days on medical grounds and will bring physician's note. The ee did not report to work until 02/04/04 and did not submit physician's note. Therefore, we didnot permit the ee and advised him to submit the documentation in order allow to work. The ee didnot communicate or submitted the physician's note until 02/13/04. Ultimately, on 2/13/04, we mailed the termination notice for no call no show (Maximum 12 absences). Surprisingly, on 2/18/04, the ee showed up with a physician's note. The note states that ee was under the care from 01/28/04 to 01/30/04 and allowed to return to work on 02/16/04, but there is no explanation for 01/31 to 02/15. Therefore, we did not accept the physician's note or allowed the ee to return.

Please advise me whether our actions are proper or not. If not, what would be the company liability?

Thank you.

System

The physician's note does not make sense. If the employee was under the physician's care from 1/28 through 1/30, why was he/she not allowed to return to work until 2/16? We're non-union and would have termed the employee. We're a public sector and the employee would have had a right to a "hearing" to plead his position and save his job. It doesn't appear that this employee has any valid reason for not calling or showing up for work.

deniseE

We just had a similar situation, although it was a shorter time frame...we did call the doctor's office to verify the validity of the note...it just didn't jive with the story...the doctor's note did check out, well after the fact...after we terminated her...

PA had a recent ruling that permits employers to call a doctor to verify the validity of a note, as long as the employer is seeking no medical information.

it might be worth checking out and saving yourself an expensive UC battle.

aspen29

Dear Denise:

I contacted the physician to verify the dates. Physician's secretary verified that EE visited the physician on 02/13/04 to obtain a note for 1/28 through 1/30. That means the EE do not have any documentation for 1/31 through 2/15. As I suspected EE's attorney called to find out why I contacted. I told the attorney that I want to verify the dates. So, EE termination stands.

Thank you for your advise.

aspen29

Dear S. Moll:

I contacted the physician to verify the dates. Physician's secretary verified that EE visited the physician on 02/13/04 to obtain a note for 1/28 through 1/30. That means the EE do not have any documentation for 1/31 through 2/15. As I suspected EE's attorney called to find out why I contacted. I told the attorney that I want to verify the dates. So, EE termination stands.

Thank you for your advice.

Whatever

Had a similar case. Bringing in the doctor's note after the termination was ruled not to have excused the fact that the employee neither reported to work or called in.
By the way, we have a 3 day no-call policy.

aspen29

Dear Whatever:

I contacted the physician to verify the dates. Physician's secretary verified that EE visited the physician on 02/13/04 to obtain a note for 1/28 through 1/30. That means the EE do not have any documentation for 1/31 through 2/15. As I suspected EE's attorney called to find out why I contacted. I told the attorney that I want to verify the dates. So, EE termination stands.

Thank you for your advice.

Crout

Looking at potential liability for your company, I'm wondering how close the FMLA event was to the three days of absence. If the FMLA event occurred around the same period of time, a connection between the two might be plausible; in which case you could be facing a retaliation charge.

aspen29

Dear Crout:

The EE was on FMLA some time in December 2003. I believe we are ok with FMLA and not considered as retaliation.

I contacted the physician to verify the dates. Physician's secretary verified that EE visited the physician on 02/13/04 to obtain a note for 1/28 through 1/30. That means the EE do not have any documentation for 1/31 through 2/15. As I suspected EE's attorney called to find out why I contacted. I told the attorney that I want to verify the dates. So, EE termination stands.

Thank you for your advise.

marc

We have a similar situation in the works right now. A pregnant EE is having some difficulty. Each week for the last 3 weeks, she has called in with Doctors notes, which she finally produced, although we had to send another EE to her house to get, along with some client files she was working on before she had all the problems. We notified her that she was now on FML contingent upon producing medical certification. She has used all paid leave banks at this point and her case load has been redistributed pending resolution of her status.

Most recently, she was scheduled to be back to work on Tuesday, according to her doctor's note. On Wednesday morning she left us a voice mail saying she had checked into the hospital. No calls since.

She has 4 write-ups pending due to performance issues, one of which was found during our normal chart auditing process, one was found when alternate case managers picked up her work, one from a contact through another agency, and one from a parent contact.

Today is the 2nd, no-call, no-show day. We are struggling with how much outreach we must do to and how "safe" it is to term her on her third no-call, no-show day per our policy.

This thread should prove on point.

Don D

Marc: Are you seriously 'struggling' with whether or not to terminate for no-call no-show an employee who you reasonably know to be confined to a hospital bed? I would love to be that person's lawyer.

marc

Not really. It is just that so many issues have hit the fan with this EE. In the absence of the illness, she would have been terminated for the items that we would have discovered. I am assuming we would have discovered all of the performance issues except one.

Our lawyers take on it is that the FMLA is not intended to protect EEs that are not performing, but we are treading water because of the illness issues. In the end, we care about our EEs and try to give them every possible chance, even if it means we occasionally get taken advantage of.

As to the EE, it is our understanding through mutual friends of hers and other EEs that she is not incapacitated and is able to communicate easily, etc. It is my opinion that she should call in to advise us of status, best estimate of return to work, etc.

That said, we are in a wait and see mode.

aspen29

Dear Don:

The EE was on FMLA some time in December 2003. I believe we are ok with FMLA and not considered as retaliation.

I contacted the physician to verify the dates. Physician's secretary verified that EE visited the physician on 02/13/04 to obtain a note for 1/28 through 1/30. That means the EE do not have any documentation for 1/31 through 2/15. As I suspected EE's attorney called to find out why I contacted. I told the attorney that I want to verify the dates. So, EE termination stands.

Thank you for your advise.

aspen29

Dear Marc:

The EE was on FMLA some time in December 2003. I believe we are ok with FMLA and not considered as retaliation.

I contacted the physician to verify the dates. Physician's secretary verified that EE visited the physician on 02/13/04 to obtain a note for 1/28 through 1/30. That means the EE do not have any documentation for 1/31 through 2/15. As I suspected EE's attorney called to find out why I contacted. I told the attorney that I want to verify the dates. So, EE termination stands.

Thank you for your advise.