Employee now says he has HIV
GLC
174 Posts
We have an supervisor who is on intermittent FMLA and he is getting close to using up his 12 weeks. He is out sick FREQUENTLY and therefore has an attendance problem. He knows he is close to being terminated and now tells us he is HIV positive. My questions are: 1) Can we still terminate him once he reaches 12 weeks or is this a case where we must do something differently because of ADA. 2) Can an ee choose not to use FMLA. I'm wondering if other companies force employees to use FMLA. Some of our employees and their supervisor will forget they need to notify HR of their need for FMLA. 3) Is it the employee's responsibility to notify us or the employee's supervisor if they need FMALA. If HR becomes aware that the ee has an FMLA qualifying event, is it HR's responsibility to get the FMLA forms to them 4) Can we go back and make FMLA retroactive? If so, how far back?
Comments
Can an ee choose not to use FMLA.
No - it is the employer's right (and responsibility) to designate eligible time off as job protected under the FMLA....I tell our employees this is not something they can refuse.
Is it the employee's responsibility to notify us or the employee's supervisor if they need FMALA. If HR becomes aware that the ee has an
>FMLA qualifying event, is it HR's responsibility
>to get the FMLA forms to them?
Yes, it is the employer's responsibility to get the forms to the employee. Employees do NOT have to ask for time off under FMLA, specifically. It is our responsibility to recognize when certain leaves and absences may qualify and to send the proper certification to the employee to find out if they are eligible for job protected leave.
4) Can we go back and make FMLA retroactive?
I do whatever I can not to designate retro.....if you do, then you basically have to prove that had you told them initially that the time off was going to be deducted from their 12 weeks, that they would not have changed their mind about the time off, that they still would have taken the time.
Feel free to correct me if I am wrong, anyone.
You can still terminate him. ADA primarily concerns accommodations to allow him to work. If there are accommodations by which you could handle his absences, you could consider using them, under your usual interactive procedure. It's hard to see how a supervisor could supervise on a long-term part-time intermittent basis.
2) Can an ee choose not to use FMLA. I'm wondering if other companies force employees to use FMLA. Some of our employees and their supervisor will forget they need to notify HR of their need for FMLA.
The employer gets to decide when to start the FMLA clock running, whether the employee wants it to or not. The employee can't choose not to designate something as FMLA. That means it's in the company's interest to designate FMLA early. You should train your supervisors on what qualifies for FMLA designation and to notify HR ASAP. Of course, this is a supervisor, so...
3) Is it the employee's responsibility to notify us or the employee's supervisor if they need FMLA. If HR becomes aware that the ee has an FMLA qualifying event, is it HR's responsibility to get the FMLA forms to them
I'd say both. The employee will want to notify you if it's in the employee's interest. The supervisor should notify you to make sure you can get that clock started as early as possible. And HR should get the forms going as soon as possible, because of the answer to #4:
4) Can we go back and make FMLA retroactive? If so, how far back?
There are some very limited circumstances under which you can go back retroactively - basically, if the employee hadn't given you enough info to determine it was FMLA-qualified before. If you don't find out until the employee returns from leave, you have two business days to designate it. But this one's been handled as intermittent FMLA, right?
Brad Forrister
VP/Content
M. Lee Smith Publishers
Excellent post, nothing to add except a little extra explanation to 4). The law did not intend for the EE to get more than the 12 weeks guaranteed. So if the EE did not notifiy or if an honest mistake or oversight was made by the ER, the courts have recently held that retroactive designation can occur. I don't remember the ruling(s) that establish that, just that they have happened.
By the way, that follows several rulings that previously established that retroactivity was not appropriate - that is probably why Brad talked about the very limited circumstance.
>FMLA and he is getting close to using up his 12
>weeks. He is out sick FREQUENTLY and therefore
>has an attendance problem. He knows he is close
>to being terminated and now tells us he is HIV
>positive.
Doesn't the above make you suspicious of their motives?
If this supervisor is out on approved intermittent FMLA and he is out sick "FREQUENTLY" and "therefore has an attendance problem" it sounds to me that you are penalizing him for using the approved intermittent FMLA. It doesn't matter if he is "out sick FREQUENTLY" as long as it is for the FMLA he was approved for.
I guess, I just don't like the way the first of the post was worded. It gave me the impression that even though they approved his intermittent FMLA, they really didn't want him taking it and now they say he has an "attendance" problem.
Anyway, once the 12 weeks leave is used up providing your company policy does not have other additional leave available and that his condition (HIV Positive) is not ADA (which I'm pretty sure it's not), if he needs additional time and none is available then you can terminate him.
You might also need to check to see if he qualifies for your disability insurance if applicable.
If he comes back to work and then has an attendance problem then you may also terminate him.