Leave of Absence

denjen

EE has run out of FMLA and still can not return to even part-time work. She has requested a second Leave of Absence that she cannot fullfill. Boss says let her go. Any legal concerns?

Whirlwind

First, what do you mean by a "Leave of Absence that she cannot fullfill"? Do you mean that she doesn't have paid leave to cover it or that you anticipate her still not being able to return to work at the end of it?

Here's what I would do: When a person has exhausted all of their leave entitlements (paid leave, FMLA, leave as an ADA accommodation, and/or anything else your policies might provide for), we go through a set procedure to determine whether there's a business necessity to fill that job. If there is, we terminate the employee. If not, we'll allow them to remain on unpaid leave for up to a total of 12 months OR until they quit OR their medical situation changes OR it becomes necessary to fill the job, whichever comes first.

ray a

Similar to Whirlwind, only we wait just 6 months before termination.

denjen

I mean she has already asked for one leave of absence and said she would come back in January. Now she wants till April. I doubt that she will be back by then. Is it really a leave of absence if she is coming into work just enough to pay for her share of the insurance?

denjen

I have doctors notes that she could come back PT (3 half days and 2 full days per week) this was all the way back in Dec. 06. but she never did work that much. A more recent note says she has psychosamatic pain, depression, and anxiety. The Boss says terminate. It would be my first.

Whirlwind

First, if the most recent note (the one that documents the psychological problems) does not explicitly either state that she cannot work at all, or that she can work a specific number of hours, I would request that the doctor give you this information. If it says she can work more than she is, I would hold her to that. If it says she cannot work, then you shouldn't be letting her work for the purpose of getting her insurance.

I think unless you have a policy or a practice of allowing people to stay on leave (or mostly on leave with very minimal part-time work) after FMLA, you're safe to terminate her. But she could try to play the ADA card -- in other words, she might contend that you should have granted further leave as an ADA accommodation.

You mentioned previously that you were new to HR. This is a pretty complicated problem, so if you have an attorney on staff or on retainer, I would definitely seek his or her advice. If I were you, I'd tell my boss that it'll be cheaper to get some legal advice now than to fight a lawsuit, even a weak one, later on. This woman might snap out of her depression just long enough to find her own lawyer.

denjen

What is ADA?

Whirlwind

[font size="1" color="#FF0000"]LAST EDITED ON 03-15-07 AT 10:17AM (CST)[/font][br][br]Americans with Disabilities Act. Briefly, this law entitles a qualified person with a disability to a reasonable job accommodation. Sometimes a mental condition will constitute a disability, and sometimes an extended absence could be an accommodation if it would not place an undue hardship on the company.

The bottom line is that chances are you're okay to term. this person, but there are some possibilities here that it sounds like you're not prepared for. That's nothing personal -- just an experience factor. None of us were born knowing this stuff - we all had to learn it.

denjen

Thank you for your insight.

marc

We had a similar situation with an EE that also had Short term and long term disability implications.

After FML expired (she used every bit of it), she tried to come back to work part-time per her Dr's release. We accomodated the part-time request, but she was unable to hack it, severe depression and anxiety were the culprits.

She applied for and was granted 90 days leave of absence (LOA). No pay for this and she had to pay insurance out of pocket. Our policy for the LOA says we cannot guarantee to hold the job but will be re-instated if the job is available or can apply to any other open position for which the EE is qualified.

She was granted an additional 90 days after that. When she was finally ready to try again, all we had was a lower paying, part-time clerical position. I offered it to her and she declined.

As you can see, we bent over backwards on the LOA situation because there was little opportunity for it to backlash. We were not out any money, nor were we tied to FML job protection issues.

In the end, she resigned - we did not have to fire her nor face any issues around a wrongful termination.

This worked for us.

jitrbug

We have a Leave of Absence policy where we auto grant an ee additional unpaid leave up to 30 calendar days if the ee's doctor states that their expected return to work date is within that period after their FMLA exhausts, we grant this to them automatically at the end of the FMLA 12 wks.

If the ee wants to go past the doctor recommended time off within the FMLA 12 wks, the ee can request a 30 day personal leave that requires their manager approval. If not approved and they don't rtw, we term.

If the ee's doctor states that they cannot rtw by the end of allowed FMLA or the +30 days, we term BUT in both cases, they are eligible re-apply after med clearance.

denjen

I like how clear your policy is on the matter. I think we went wrong being too vague and treating each ee differently according to their value to the company. I hope to adopt a well thought out LOA policy for the future.

jitrbug

That is exactly why we wrote that way, it was clear/fair and easy to administer. You're right, you have to be careful in looking at the value issue, it can muddy the waters very quickly.

ray a

Careful, even FMLA makes allowances for how you handle key employees. Are you suggesting you would *always* treat a 25 year professional ee with an excellent track record the same as a 2 year entry level ee with a questionable attendance record?

denjen

We actually have that situation right now. A salary ee fighting to go on FMLA and substandard wage ee coming off. The precident has already been made for wage ee but not salary.

ACU Frank

Well, that's the toughest thing to get some HR folks to see... "fair" and "equal" are NOT the same thing. But sometimes it takes a lot more work to treat people fairly than it does to treat them equally.

System

Well, sure, but "key employee" is very specifically defined as being a salaried employee who is in the top ten percent of pay for all employees. So that means *at least* 90% of a company's employees are not going to be key employees for purposes of FMLA. I'm sure out of those 90% (or more) there are still going to be great variations among people's track records, skills, etc. denjen's initial comment was that she treated people differently depending on how well they were valued by the company. To me that sounds very subjective, like if two employees had the same length of service, but one happened to be a much better employee than the other, they might make allowances for one but not the other. So I think that's the sort of thing people were talking about when they stressed the importance of a universally-applied policy - I don't think there was any suggestion that the key employee exception would be ignored.

Not to mention that the FMLA's provisions for key employees actually make things *worse* for those employees, not better (e.g., key employees may not be entitled to reinstatement, while non-key employees are); I think denjen was suggesting that they usually do *more* to try to retain the higher-valued employees than lesser-valued. Your comment seems to suggest that possibility as well, the way you highlight the excellent track record v. the questionable attendance record, but perhaps I misunderstood. But my understanding is that the "key employee" provisions of the FMLA operate as an *exception* to the FMLA (i.e., employers don't have to do as much for key employees as for non-key employees), not as giving employers authority to treat key employees better than non-key employees with respect to the leave.

(Also, I think once you get beyond the 12 week period, this wouldn't be an FMLA question anymore. FMLA deals only with what happens if the employee returns in those 12 weeks. Anything after those 12 weeks is a completely separate issue, and would fall under ADA or similar laws.)

ray a

Right Missk. I was merely suggesting, as ACU Frank says above, fair and equal are not always the same thing. He put it well. I was suggesting that not every situation fits into the exact same neat box.

I guess I'm confused about one thing, denjen, why are you making this ee fight to go on FMLA, as you put it? If the ee qualifies, you don't have the right to deny. Do you require ee's to get doctor's certification? If so, and the ee's case fits the requirements of FML, then it should be automatic. FMLA dictates minimum requirements for approved unpaid time off. You may always establish a more liberal policy that exceeds that.

denjen

You are right. We were pushing her to go on FMLA, and we do require a doctor's certification. The former HR director was being influenced by a disgruntal co-worker. The salaried ee needed to take time off to care for ill parents and has worked here long enough to build up a month's worth of vacation and sick time. The president has okayed "flex time". A term that we cannot define. She has been coming in as she can and fullfilling the rest of her required 45 hours with time built up, that she earned.
This morning I approached the supervisor (whom is struggling with this) and suggested that we not require the ee to hand in FMLA. After all FMLA is needed to protect their job. Her job is not in danger. We asked her to go on flex time for our benefit not her benefit. Atleast then she comes in to keep things moving.
Do see any potential risks in this approach.

System

I don't understand; I thought you said she had used up all her FMLA?

Keep in mind also that FMLA protects employers *and* employees. If she still has FMLA left it's to your advantage for her time off to be designated FMLA which will limit the FMLA time she can take in the future.

denjen

Sorry we switched ee in the middle. The original wage ee has run out of FMLA and can't seem to work more then a day a week. The second ee is salary and has vacation and sick pay built up. I don't want to treat the two equally but rather fairly. Hopefully, that is a little more clear. All of this advice has helped. I'm glad I took the time to log on. Thank you

ray a

Suppose this ee comes in and needs more time off and is unable to work on a part time basis. If you do not count the time off she's already had toward FML, then she will get another 12 weeks of FML time. Can you manage without her for another 12 weeks? I would insist any time off such as this be counted toward FML, as long as it meets the criteria. As Missk says, FMLA protects both the ee and the employer.

I have allowed an exempt supervisor coming back from cancer surgery and still covered by FML to work part time and make up the difference with accrued paid time off. That is a viable option.