Complicated situation getting more complicated-er.
Paul in Cannon Beach
4,703 Posts
I am asking this question on behalf of our church which is dealing with a complex situation.
I was asked for my advice as I am on the elder board but I wanted to run this by all of you for your thoughts.
EE has been employed by the church for more than 12 years as office manager (full-time, exempt) with health insurance and long term disability insurance. The church has 11 full time employees.
EE has 15 days of vacation and 53 sick days on the books.
In 2000, ee submitted a WC claim for tendonitis in hand, wrist and arm. Claim was accepted and benefits were paid out.
In November of 2005, ee submitted a claim for bilateral wrist and thumb condition requiring surgery. Claim was recently denied.
EE has indicated that she wants to have surgery on one hand which will require a six month, no work recovery. Then she wants to come back to work for six months before scheduling a second surgery for the other hand with the same six months, no work recovery period.
EE would like to be able to continue her health insurance while on leave.
EE worked well with the previous pastor who left in July of 2005 but is not on good terms with the interim lead pastor. EE has been a valuable member of the team, highly knowledgeable, and competent. EE has also been difficult to work with at times and is known to come late and leave early.
I have made my tentative recommendation but I wanted to get the opinions of my esteemed colleagues.
How should the church respond to the ee's request? What issues do you see at play here? What information have I left out?
Thanks in advance for any help you can offer.
I was asked for my advice as I am on the elder board but I wanted to run this by all of you for your thoughts.
EE has been employed by the church for more than 12 years as office manager (full-time, exempt) with health insurance and long term disability insurance. The church has 11 full time employees.
EE has 15 days of vacation and 53 sick days on the books.
In 2000, ee submitted a WC claim for tendonitis in hand, wrist and arm. Claim was accepted and benefits were paid out.
In November of 2005, ee submitted a claim for bilateral wrist and thumb condition requiring surgery. Claim was recently denied.
EE has indicated that she wants to have surgery on one hand which will require a six month, no work recovery. Then she wants to come back to work for six months before scheduling a second surgery for the other hand with the same six months, no work recovery period.
EE would like to be able to continue her health insurance while on leave.
EE worked well with the previous pastor who left in July of 2005 but is not on good terms with the interim lead pastor. EE has been a valuable member of the team, highly knowledgeable, and competent. EE has also been difficult to work with at times and is known to come late and leave early.
I have made my tentative recommendation but I wanted to get the opinions of my esteemed colleagues.
How should the church respond to the ee's request? What issues do you see at play here? What information have I left out?
Thanks in advance for any help you can offer.
Comments
1. In the absence of a clear policy or precedent to do so, I would not hold someone's job for six months, twice. Maybe once, for the hand that was originally covered by W/C.
2. I'm guessing you're not covered by FMLA. Either way, I would not pay someone's insurance premium beyond what is required by FMLA, but if you allow the leave and she wants to stay in the group and pay for it herself -- fine.
3. How she got along with/gets along with the former or current pastor should not be a consideration, in my opinion.
Do you think this situation is complex enough to warrant seeking the advice of an attorney?
I was wondering if seeking out an attorney now might discourage the ee from seeking one on her own.
In other words the church could say "We have discussed your situation with our attorney and we have been advised that we can offer you this, this and this. We are sorry we can't do more for you."
What do you think?
No one is talking about lying to this ee. If anything we want to offer her everything that she has coming to her and possibly a little more in recognition of her years of service.
What the church wants to avoid is setting a precedent that could hurt them later by complying with the ee's request that her job be held for her for 18 months and that she retain her health benefits.
I dont know where you got the "lying" part.
Once you've provided the required 12 wks of FMLA leave, you're under no obligation to hold this person's job for her if she's unable to return to work fairly soon after expiration of the 12 wks.
One issue that got my attention was the 2nd WC claim that was denied-- I assume it was found NOT to be work related, hence the denial. As long as you're confident of that finding...no problem. But if she could likely convince a jury that the finding was wrong, and the condition was in fact work related, then you might have a problem if she decided to sue.
As for continuing her insurance, after expiration of FMLA leave, she can COBRA her health insurance for up to 18 mos.
But it sounds as though there are some issues with her performance: i.e., "difficult to deal with", reports to work late, leaves early, etc.
If I found myself in your church's position here, I think I would ask myself: "If this EE resigned, then later applied for her job again, would I re-hire her?" If the answer came out "yes", then I would consider going above and beyond to accommodate her...within reason. But if the answer is not a clear "yes", then I would not be inclined to go much beyond what FMLA requires.
If there is no guidance here, I would ask for a doctor's statement outlining the recovery period following this surgery. I would ask the employee to put her request in writing with the medical report to support it. I think it could be considered burdensome to an organization that small to hold a job for six months while someone recovers.
Am I the only one who would question what type of surgery would require six months of recovery with no work? I have seen people with carpal tunnel come back quite quickly and I have had ulnar nerve transpositions at both elbows myself and missed only one week each time. The six months seems extreme to me.
IMHO....
Cheryl
I was thinking the same thing -- 6 months recovery??? Could she not do ANY work during this time? I would want to know the restrictions and how long they are in play after the surgery.
What duties are included in her job description that she would NOT be able to do, say 1 month, after the operation? etc.
According to the ee, the doctor has told her "six months, no work". Yes, it seemed extreme to me.
As an office manager, almost everything she did would require her hands, typing, filing, paperwork, etc. It would be difficult to come up with a modified job description.
Unfortunately, the church (like many small organizations) has a very small policy manual which is of little help.
The word "permanent employee" on the second page doesn't make me excited either.
The ee has struggled since the former pastor left last year. She has not been easy to work with. Its hard to say how she will do with a new pastor.
I am not confident in the WC decision. If one hand was accepted, why was the second claim denied?
I think I may advise the church to wait on any decision until the ee has had an opportunity to appeal the WC decision. If the decision stands, offer the ee a generous severance including the ability to stay on the health plan for 18 months. I believe church health plans are exempted from COBRA but perhaps it would still be a gracious way to help the ee out.
Does anyone still think the church should seek an attorney?
Maybe before you go the legal route, I would try to find out why this person's recovery is to take so long.
Have you given thought to using FMLA as a guideline for leave/job protection situations? GIves you something to use as a guide, you could argue you are doing more than required and require same kind of documentation.
Then sit down and explain, sorry job is only protected for 12 weeks.......but geez you have been her so long we would in this case extend it up to 26 weeks if medically necessary but only this once.
Make it clear that they have to continue with their portion of the health insurance premium.
This allows you to get info from the doctor and require them to put in writing they must have 6 months recovery.
My $0.02 worth,
THe Balloonman
Either that or just say no and let her go.
He has been given my advice to ask for written documentation of the need for six months recovery (no work).
WC carrier is firm on the denial and the appeal deadline has come and gone.
The lead pastor has not always gotten along with this ee. At one point they would not communicate with eachother. They have worked through most of this but its sure to be a tense conversation.
So... it will be interesting to hear how that conversation goes and what agreement is reached.