Intermittent FMLA & Performance

FranC

I have an employee who suffers from panic attacks. She has been approved for intermiitent leave and returned to work. The attacks may occur two or three times a week or once every other week. She is in a production area and each time she has an attack it impacts the entire team, disrupting their work as well.Last week it was necessary to call 911 and transport her to a hospital. Since the start of the attacks, her production has deteriorated and she spends a great deal to time discussing her medical problem with others. We have discussed this with her and advised her to stay at her desk and improve her dailey production. Question: Can she be disciplined for performance?

Hatchetman

I assume you're asking if the employee's intermittent absences under FMLA can be held against her because they impact production?

Leave under FMLA is not to be counted against the employee since it is a legal right "protected" by that law.

You are permitted to transfer the employee to another, available position, with equal pay and benefits, but not necessarly equal duties, for which the employee is qualified and which better permits the intermittent leave. This would occur as long as the employee is on FMLA intermittent leave.

I would discuss the issue with the employee; identify the impact the intermittent leave is having; tell the eymployee that you had hoped she could keep the same job while she was on intermittent leave, but it isn't working out; and transfer her to another open position--give her the same rate of pay and the same benefits she currently has. See if there is something that can be mutually agreed to.

One other thing you can try is to modify the current job's duties so that her intermittent absences don't impact production (as much).

CuriousG

I agree with Hatchetman, with one addition. Your original post states the employee spends a lot of time discussing her medical condition with he co-workers. If this is during production time (not breaks) then you do have a right to counsel, and if necessary discipline this employee for disrupting production. This is not different than if the employee was disrupting production by discussing her date last night, a fight with spouse or significatn other, or any other non-business related subject.

Give this employee is prone ti panic attacks, I would begin with simply counseling the employee about her behaviors. She may well not even be conscious of the fact he is discussing her personal life so openly. If your company has and Employee Assistance Program, you might consider a referral, and also consider having her supervisor contact and EAP counselor for some guidance on how to deal with the productivity issues.

You also need to be thinking abou the ADA implications of the employee's condition. Panic Attacks can be transitory, and for others they are a permanent part of daily life. If this latter is the case your employee will definitely be an ADA issue and you will need to begin to consider how you can accomodate her condition, without undue hardship.

System

I agree with Hatchetman and CuriousG. What you have are several issues that need to be analyzed separately.

1. She's taking FMLA leave, and you can't punish her in any way for that.
2. This might be an ADA disability (or maybe her bosses perceive her to be disabled, which also gets ADA protection). Then you might have to make a reasonable accommodation.
3. Her attacks disrupt other employees. Can you ask her to get her doctor to give you advice on how to deal with this?
4. Her productivity is too low. The solution to this problem might be FMLA or ADA leave or EAP to deal with it.
5. She spends too much working time gabbing about personal stuff. This has nothing to do with the ADA or FMLA.

Hope this helps.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

FranC

Thanks to everyone who responded. I do understand the FLMA/ADA laws. I was struggling with how to get the situation under control. We gave her a conference room to go to when she feels a panic attack coming on and have explained to her when management determines that she cannot be productive for the remainer of the day she will be sent home under the FMLA intermittent leave. The employee is in agreement with our suggestions. I believe part of her behavior could have been for the attention and we have removed that by asking her to go to the conference room. Thanks again! This was my first visit to the Forum.

Lois

Thanks for taking the time to update us on what action you took in response to this situation. It's helpful to hear "the rest of the story." Best wishes!