Pending FMLA Certification

dhnyct

Scenario: Employee has an attendance problem, but also has a known medical condition. We designated intermittent FMLA in September and requested certification from the primary care physician. Response was mixed. He does NOT document support for FMLA, BUT goes on to say he is referring employee to a neurologist. Employee unable to get an appointment until the end of November.

Comments/Suggestions Needed: Attendance continues to decline, and supervisor suspects it may not be entirely due to the known medical condition. The overall effect of employee's unpredictable attendance is creating a hardship situation for the company.

In the maze of ADA/FMLA, can we place employee on unpaid leave of absence pending the results of neurological exam? If so, does the FMLA clock continue WITHOUT official certification?

LOA would allow us to deal with immediate staffing/business issues and provide employee with continued access to badly needed health coverage. But would it just push us deeper into the "black hole"???

Sure could use some prompt words of wisdom...and reference to supporting regulations, etc.

Thanks ! ! !

Gar

Based on what you've indicated, you have an employee with an attendance problem and his supervisor believes some of it is not related to his condition. Moreover, in September, you provisionally designated the condition as an FMLA qualifying event but his doctor, for whatever reason, will not certify it as such. The employee has been referred to a specialist but cannot get an appointment until the end of November.

First of all, according to the FMLA, the employee has fifteen (15) days to obtain the certification from the date you provisionally designate the leave. No certification, no FMLA leave. Moreover, absent the certification, you have no basis for an ADA accommodation. That being said, his attendance should be treated like any other attendance problem. If out of the kindness of your heart you choose to put him on leave of absence status, that's up to you and may be the safe bet. But, legally, it seems to me that you can require him to work. Are there any other views?

dhnyct

Thanks for responding, GAR. So without a positive FMLA certification, ADA also does not apply? The doctor did acknowledge a long history of the continuing medical problem, yet he did not verify a need for intermittent FMLA (???). I'm anxious to hear from the specialist later this month.

Based on the attendance problem unsupported by FMLA/ADA, the employee is history. Yet without medical coverage (and maybe even our insistence on qualifying FMLA/ADA protection) the employee might never pursue possible treatments. At this point the employee is afraid, mostly from lack of understanding. My hope is that she will take control of her future as a whole.

Should she deny effective treatment options, the attendance situation and it's consequences will stand alone. My concern is whether putting an employee on LOA would only complicate the situation.

Pending the specialist's statement, do all related absences still go back to our intial date in September???

Gar

Thanks for clarifying the facts. Essentially, for FMLA purposes, I would want to know if the employee can work or needs the leave. Since the doctor won't certify the need for intermittent FMLA leave, which assumes he/she will not certify the need for any amunt of time off, I would stop the leave provisionally designated/granted last September pending the report from the specialist at the end of the month. In the meantime, I would consider a temporary work adjustment in view of and consistent with the doctor's acknowledgement of the "long history of the continuing medical problem." I'd be very careful not to consider this an "accomodation" per the ADA absent the report from the specialist. I'd ask the employee, in concert with her management, for her ideas for the temporary work adjustment. Furthermore, given her attendance record, I'd require a doctor's note verifying all absences between now and the end of the month. The specialist's report should provide guidance as to whether the FMLA clock should restart. No report, no FMLA leave. However, as mentioned before, the safe bet may be to put the employee out on a non-FMLA LOA pending the specialist's report. Last but most importantly, I'd check with my legal counsel before doing anything.

Theresa Gegen TX

One Caveat: the Americans with Disabilities act is independant of the FMLA. Even if the employee cannot qualify for FMLA leave, he may be eligble for an ADA accomodation. However, Court routinely hold that attendance is an essential function of a job -- and if the employee cannot show up no accomodation is needed.

Also, you can't presume that the employee is disable.

You may want to get to the root of the absenses (are they for the medical condition or something else) before you make a decision.

Good Luck!!

System

With the ADA and FMLA, you only have to deal with the facts that you know (or should have known if you made a reasonable effort). You don't have to be clairvoyant. It sounds like you have no way of knowing whether her condition is serious enough to be covered by either law.

So Gar is right -- she's not protected by ADA or FMLA unless she gives you medical info. And at this point, the ball is in her court. It's possible her condition could be covered by the ADA but not the FMLA (it's a disability, like blindness, but she doesn't require time off for it or it doesn't incapacitate her).

It's probably good for someone to sit down with her to educate and calm her down. Explain that she'll need a doctor's note to keep her job, and give it to her in writing, too.

If you want more advice, I highly recommend talking to Margaret Morford. She's president of theHRedge, the consulting group associated with HRhero.com, and she's great at handling difficult situations. She's at
615.371.8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net/[/url]

Good luck.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Terri

What happens if this employee has over 600 hours of sick leave available to her that she has been allowed to accumulate over the years? Could she still loose her job after 12 weeks of FMLA?

Theresa Gegen TX

This issue really deals with your company policy. Your company can always be more generous on leave than the FMLA. If other employees were allowed to take additional leave (over and above the 12 weeks) and your policy allows for it, then she should be given the benefit of the company policy and treated the same as others.

So if the company policy allows employees to use sick leave all at once, let her use it. (Most companies will require employees to exhaust paid sick leave at the same time they use FMLA leave, to avoid the indefinate leave issues).

Good Luck!!

Terri

Thanks. I appreciate your response. Right now, there isn't anything in our policy to address this issue one way or the other. However, the company is planning to take away all sick time over 480 hours (12 weeks)on December 28th. A lot of employees who have over this amount sick time are very upset. They (we) are going to need the good luck you extended. Thanks again.