2 FMLA questions
HRwannabe
5 Posts
1) Can you issue an attendance point to an employee who leaves 6 hours into his/her shift? This employee has the proper documentation, say for depression/migraine, and is on an intermittent FMLA. Can we legally issue a point? My understanding is we cannot.
2) Let's assume an employee goes out on FMLA for the 12 weeks. However is unable to return even still beyond the 12 weeks, and the leave now is solely STD. Can we post for her job since this employee holds a key position after the 12 weeks? Or even beyond the 12 weeks of her exhausted FMLA, do we have to restore her into an equivalent position since she had gone out on FMLA? I am assuming the keyword is "returning", thus if she went out on FMLA, we should restore her to an equivalent position with same pay and benefits.
Your thoughts and comments are greatly appreciated. Thanks.
2) Let's assume an employee goes out on FMLA for the 12 weeks. However is unable to return even still beyond the 12 weeks, and the leave now is solely STD. Can we post for her job since this employee holds a key position after the 12 weeks? Or even beyond the 12 weeks of her exhausted FMLA, do we have to restore her into an equivalent position since she had gone out on FMLA? I am assuming the keyword is "returning", thus if she went out on FMLA, we should restore her to an equivalent position with same pay and benefits.
Your thoughts and comments are greatly appreciated. Thanks.
Comments
My stab at this with my thoughts:
(1) A person on approved FMLA, including intermittent, cannot have a point system punitive measure or any other discipline applied to them for exercising or while exercising the rights available to them under FMLA, which she/he might be doing here. If, however, they are violating the intermittent agreement somehow and the absences are not being discussed with and cleared by the company, and there is no proof or suggestion that they are indeed related medically to the approved FMLA, you may be able to apply your normal points and attendance policy. If these episodes, as covered by the medical certification, might tend to be sporadic/unanticipated/no notice types of episodes addressed by the physician, you are probably stuck with them as FML absences and I would not suggest tampering with that, as badly as you may want to.
(2) My understanding and experience with your second question is that an individual, after exhausting FMLA, still unable to return to work due to a continuing medical condition, MIGHT have some degree of ADA protection, but is no longer protected by Federal FMLA. (You are always advised to check your state statutes which might address this). In the absence of state regulations, then ADA accommodation consideration comes into play for your company and you would run that rabbit through its investigative and interraction process with the ee. If not ADA protected, still unable to return, then your company policy on attendance and/or your STD/LTD policies seem to be your primary considerations.
Of course your first consideration is always to follow specifically the federal and state regulations regarding FMLA and ADA. Secondly, your consideration should be, in my opinion, the company making a decision in light of what precedent it will be setting going forward, should you decide to let the ee slide.