Another FMLA Question or Two

MarcS

Hello everyone. Please be pateint with me as I do not post often, nor am I as an owner, 100% up on this area (FMLA). I admit I am not an HR expert.

Anyway, I have a fewquestions. We have a PTO system here whereby employees accrue paid time off anually for the entire year, on an annualized basis. The total bank of hours can be used anyway they want, 100% for vacation, or 100% for sick time or a combo of both (we hope for this option. Anyway, we have two employees here that due to their tenure, have an additional week of PTO hours. These two people took vacations and sick time this year. One of them had a minor car accident that now requires many many doctor visits, so she is over her PTO. The other has a pre-existing condition (LUPUS) that requires doctor visits, but all of the sudden she has gone over too. Here are my questions....

1) Other than granting additional time off for these doctor appointments for both of them, without pay, anything else we can do as punishment for excessive absenteeism?? anyone think we can suspend them a day or so without pay and be ok under FMLA?

2) I have seen other threads that talk about putting people on FMLA with forms, etc. is there some sort of letter you have to send for this, etc? you as employer can elect to place someone on this (FMLA) without their consent? where can i find some more details on this?

juju

Sounds like you may have a small company. Federal FMLA only covers you if you have at least 50 employees within a 75 mile radius. Would you qualify? However, even if you don't qualify for federal, your state may designate other types of leave.

MarcS

we are small in the office (13 employees) but i think ew get nailed because we have field staff that exceeds 100 people. no state rules apply.

marc

To answer your questions, 1) This would not fly. You cannot punish people that are on FML - that is viewed as retaliation and could get you into plenty of hot water. FML is around to protect the EEs against exactly that sort of thing.

2. Yes there are forms. They can be found on the DOL website. Go to

[url]http://www.dol.gov./libraryforms/FormsByTitle.asp[/url]

and scroll down to the F's for the FMLA forms.

By the way, JuJu has given you an excellent point to consider before you jump into assuming the FMLA applies to you.

MarcS

i understand the point of FML. but in this instance, we have individuals who did not plan PTO properly and are putting us in a position of having labor shortages. certainly we think a better effort can be made to schedule these "doctor appts" before or after work. i think we all agree that these people will not get paid for the time off, but that doesn't seem to matter to them and certainly doesn't help my labor issue with them. is there a way for us to categorize them as FML and put them on FML leave at this point so to speak for a short period, but wel within the 12 week guidelines?

i think fmla does apply to us, see my response above.

thanks for the forms link, i appreciate it.

marc

I understand your frustration with the Act. We all get sideways with it when trying to administer the various provisions. Mostly employers want them back to work as soon as they are able, assuming the doctor releases them to work - as to giving them extra time off, it still sounds like you are punishing them. The doctors get to specify the duration of the leave and if you go beyond that, you can get in some legal hot water for interfering with their FML rights. When they come back to work it must be in the same or equivalent job with respect to pay and various other aspects of the employment.

And yes, you can request they schedule these appointments at a more convenient time, but that does not mean they must, just if they can. Often the medical providers tell them the time and there is little any of us can do about that.

Don D

Although on occasion I have flat refused to grant a person a whole shift off to see a physician when the employee works the 3:30 till 12:00 midnight shift. I just don't know that many physicians who keep those hours.

zen

The questions have been answered accurately and thoughtfully, but the way they were broached has me concerned about your company culture.

I guess my company has a completely different outlook regarding potentially life-threatening illnesses such as Systemic Lupus Erythematosis and debilitating accidents. Rather than punishing employees with these problems and who take FML to recover or get treatment, our founder has been known to go ee's homes, buy materials and build ramps, lay asphalt, visit at the hosp, etc. We have about 200 ee's and he knows us all, but he's no push-over. Once FML and STD are used up, it's LTD and/or termination. It's why, although the pay is not within market range here, I stay.

MarcS

I don't understand what you mean by company culture and outlook on life threatening conditions?

What is STD and LTD?

marc

STD is short term disability.

LTD is Long term disability. Some companies do not offer it - ours has it as an elected employee benefit.

MarcS

As to your second paragraph, can you point me to the rule that states this about not being able to require doctor visits outside of work hours or at more convenient times to both parties?

System

Welcome back, MarcS. The FMLA is tough to understand, but it boils down to this: If they qualify for FMLA leave, you must allow them to take it. Period. And you can't punish or retaliate against them in any way. You can count their FMLA leave as unpaid leave, but that's not punishment - just the consequences of them using up their PTO.

For a good overview of the FMLA, there's a free Special Report in the Subscribers Area of this website. If you haven't been there before, click on [url]http://www.hrhero.com/img/v3-menu-login.gif[/url] at the top of this page. After you're logged in, scroll down to the yellow box listing all the Special Reports. There's login help here:
[url]http://www.hrhero.com/help/subscribers.shtml#help[/url]

Good luck!

James Sokolowski
HRhero.com

MarcS

Thanks everyone. All suggestions were/are helpful. Maybe I can try and be a bit more specific for additional suggestions.

1) these two individuals are over their PTO and we have a month and a half left in the year, but they continue to pile up doctor visits.

2) neither requested the time as FML, they just ask for the time off. should i send them notice that the time over the PTO is considered FML, and can it be categorized retroactively?

3)if they haven't requested the time as FML then do we have to count it as such?

cthr

The employee is not required to request FMLA-they may not even know what it means. It is up to the employer, if they know or suspect that the leave might be FMLA covered to inform the employee, send the certification paperwork, and if the paperwork comes back from the doctor to designate it as FMLA.

FMLA is unpaid leave, it does not matter if they have used all of their time, if they are eligible for FMLA you have to allow the time unpaid. A company can require an employee to use of their PTO first for FMLA, as long as your company policy states that.

At this point, you need to start the FMLA clock running, send the paperwork and see what you get back. FMLA can in some cases be designated retroactively, however, because you and most likely your employees are unclear as to what FMLA actually is, I would suggest you contact legal counsel before making that decision.

marc

It is up to the employer to designate leave as FML or not. Most of us rely on medical services providers to determine if the situation qualifies, but it is still the employers call to designate it. I say that, because you can make it call it FML provisional on obtaining appropriate documentation back from the medical services providers.

I have read some court cases that have allowed retroactive treatment, and some that have not. Perhaps some of the lawyers that frequent the forum, can chime in to clarify this aspect for you.