FMLA

pattycake

If an employee is taking intermittent FMLA, and when the employee is present at work they don't seem to be able to perform their job satisfactorily, can the employer insist that they take an extended medical leave until their health situation improves enough for them to perform adequately?

HRinFL

You cannot force the ee to take a LOA. However, you can address the performance issue. If the ee is not able to perform the essential functions of his or her position, sit down and discuss it with them. Explain that there are performance concerns and ask the ee why they believe these problems are occurring. If they say that is due to their injury/illness, then I would discuss viable options with the ee. BTW, are these issues related to essential duties of the ee's position, or is this something that you can get someone to help the ee with? Not knowing if there are any ADA issues, I would play it safe and see if there is a reasonable accommodation for the ee.

If there are no viable solutions, you need to see if there is a position with your company that will allow the ee to continue working the intermittent schedule and perform value added work. You do not have to create a position, but if they can perform the essential duties of another position, you can temporarily assign those duties to the ee. Explain that the reassignment is temporary and that when the ee is able to perform the duties of his or her regular position, they will be returned to that position.

Finally, if that is not an option, I would discuss with the ee placing them on a LOA. Explain that there soes not appear to be any tasks that the ee can perform and that until they recover, it may be better for them to take a LOA. The decision rests with the ee. Explain that if they continue to work, and the performance issues continue, that you will have to address them, as you would with any other ee. Being honest and trying to reach an amicable solution will benefit you in the long run. If the ee takes the LOA, wriet a note that you discussed it with them and that they chose to take a LOA. Have them sign it and explain that when they are able to return, they will be returned to their original position.

Don D

Unless ADA is involved, I would NOT explore reasonable accommodation alternatives. That's a requirement under ADA, but not under FMLA. Once you go down that road in FMLA, you'd be hard pressed to not offer that alternative to others you have on FMLA. The only other exception, in my experience and opinion, is job restructuring with an employee concurreltly on FMLA and Workers Comp. It is quite acceptable for you to have a policy of doing that with your Comp people and not with others on FMLA.

Finding others to perform some of the 'non-essential' functions of one's job puts you squarely in the legal middle of an ADA exercise.

An employee on intermittent FMLA who has performance or productivity issues while working should be subjected to your normal disciplinary process, notwithstanding their being on FMLA. If your analysis reveals that the employee is unable to perform adequately due to the condition addressed in the existing FMLA certification and the certification does not sufficiently resolve it through the intermittent schedule, I would suspend the employee and require a recertification, which is narrowly allowed under the ACT in this situation.

Sure you can 'force' an employee onto a leave of absence. You can call it a suspension or you can call it what you like.