Does a reoccuring illness exempt employees from the attendance policy?
6364961
2 Posts
I was handed the HR responsibilities due to a downsizing a couple of years ago and have been learning on the fly ever since. Hopefully some of you senior HR professionals can lend me some advice on a particlar issue I am predicting may end up causing my organization (and me) some headache.
One of our employees has been repeatedly ill over the past year. Each instance has been due to the same health condition. He will be out anywhere from a day to multiple weeks. This employee continues to see numerous physicians and specialists and always supplies us with the appropriate documentation clearing him to come back to work. However, there are two problems:
1. He has been provided FMLA paperwork on at least two occasions and has never had them completed and returned. His wife is a HR professional with another organization. She has an abrasive personality and acts as his representative when he is not at work. Together they submitted in writing a request that they would like his medical leave to be considered under FMLA. At that time the employee was sent the 'certification of health care provider for employee's serious health condition" form with written instructions that if sufficent information was not provided within the next 15 days the leave may be denied. The form was never returned.
2. Whenever this employee is off with an unscheduled absence he has yet to notify his supervisor in a timely manner according to our attendance policy. To complicate things further we work for a hospital and this employee is simply showing up at the emergency room for treatment or if he begins feeling ill while at work will notify his supervisor he is going to the ER and never report back, relying on the ER nurse to notify his supervisor. By policy an absence due to illness is considered unexcused if the employee fails to notify their supervisor at least two hours prior to the start of their shift. Most of the time the employee does not notify the supervisor until his shift is scheduled to start and will simply say he is in the ER seeking treatment and wont be able to work. He has received both verbal and written warnings concerning his failure to properly notify his supervisor of an absence.
I see the writing on the wall, this employee will likely continue the same pattern which will force me to apply additional disciplinary action, probably termination. Am I setting myself up for an ADA complaint?
Comments
I was handed the HR responsibilities due to a downsizing a couple of years ago and have been learning on the fly ever since. Hopefully some of you senior HR professionals can lend me some advice on a particlar issue I am predicting may end up causing my organization (and me) some headache.
One of our employees has been repeatedly ill over the past year. Each instance has been due to the same health condition. He will be out anywhere from a day to multiple weeks. This employee continues to see numerous physicians and specialists and always supplies us with the appropriate documentation clearing him to come back to work. However, there are two problems:
1. He has been provided FMLA paperwork on at least two occasions and has never had them completed and returned. His wife is a HR professional with another organization. She has an abrasive personality and acts as his representative when he is not at work. Together they submitted in writing a request that they would like his medical leave to be considered under FMLA. At that time the employee was sent the 'certification of health care provider for employee's serious health condition" form with written instructions that if sufficent information was not provided within the next 15 days the leave may be denied. The form was never returned.
2. Whenever this employee is off with an unscheduled absence he has yet to notify his supervisor in a timely manner according to our attendance policy. To complicate things further we work for a hospital and this employee is simply showing up at the emergency room for treatment or if he begins feeling ill while at work will notify his supervisor he is going to the ER and never report back, relying on the ER nurse to notify his supervisor. By policy an absence due to illness is considered unexcused if the employee fails to notify their supervisor at least two hours prior to the start of their shift. Most of the time the employee does not notify the supervisor until his shift is scheduled to start and will simply say he is in the ER seeking treatment and wont be able to work. He has received both verbal and written warnings concerning his failure to properly notify his supervisor of an absence.
I see the writing on the wall, this employee will likely continue the same pattern which will force me to apply additional disciplinary action, probably termination. Am I setting myself up for an ADA complaint?[/quote]
I think they changed something on the notification policy compliance requirements. Someone will comment on that, I'm sure.
The place to start here is by understanding what the employer's rights are and then enforce those rights. Those rights will be in your policy. Most anything you want to do under FMLA, optional or mandatory, should be in your FMLA policy. If a person does not return their cert, the next step is to ask them why they have not returned it. That could be because his obnoxious spouse is trying to rattle your cage and get the most time possible and abuse the system. It could also be because the doctor's office manager said they would mail it in and then didn't yet the patient, your employee, believes that the matter has been resolved and that you should have it by now and would say something if you did not. I would write formal form letters for these types of communication, and keep copies in the file along with a copy of the stamped, addressed envelope with return receipt and number showing. Then staple the return receipt to the copies when it comes back to you.
There's not a lot to do until we know a) the current situation on notification policy compliance requirements under the new regs and b) the status of the cert.
It's a Sunday night I'm home so I am not looking at the regs. However this is what I do know.
1. You do not have to deal with the wife. She is not an employee and even if she is she is not the affected employee. The exception would be if she is reporting an absence that your employee is unable to report.
2. Under the new regs as of 1/16/09 FMLA absences may be required to be reported the same way as any other sick leave absence is reported. If you have a call in policy for sick leave, most FMLA events must follow the same reporting policy. If the reporting policy is violated the employee does not get a get out of jail free card. Though the FMLA may proceed, disciplinary action can be taken for violation of the absence policy. However though this is allowable under FMLA do not become overly quick to do this.
3. If you have given the employee the proper paperwork, Eligibility Notice, Employee's Rights under FMLA and the medical certification, it is up to the employee to be certain the documents have been returned within the designated time of 15 days. No excuses that the doctor has held them up. The new regs take into account that the doctor may have not sent them and the regs obligate you to give the employee written notice that they have an additional 7 days to get the med certs to you.
4. After you have exhausted all of your responsibilities to get the employee to comply you have done what FMLA requires of you. If the employee does not comply then the absence is not an FMLA qualifying event period. Yes the absence may qualify in description but that is not enough if the person refuses to comply with the FMLA responsibilities for employees. You may treat the employee under your company absence policy and pursue the stated outcome for violation of your policy up too and including termination.
Remember FMLA has responsibilities required of the employee and the employer. Likewise there are rights of the employee and the employer. The employee is required to cooperate with the FMLA regs.
Though the wife may be obnoxious and an HR professional she also must know FMLA regs. She cannot change, alter, or otherwise circumvent FMLA regs or challenge your company's rights under FMLA. Trying to work from a bully pit is meaningless. If she is advising her husband incorrectly that is not your problem. I would stop dealing with her. Keep good records and documentation. FMLA requires compliance from the employee.
Here is the actual regulation for unforeseeable events. I bolded and underlined key aspects pertaining to your situation. I hope this helps clarify what the others previously stated.
29 CFR 825.303 - Employee notice requirements for unforeseeable FMLA leave.
(a) Timing of notice. When the approximate timing of the need for
leave is not foreseeable, an employee must provide notice to the
employer as soon as practicable under the facts and circumstances of
the particular case. It generally should be practicable for the
employee to provide notice of leave that is unforeseeable within the
time prescribed by the employer's usual and customary notice
requirements applicable to such leave. See Sec. 825.303(c). Notice may
be given by the employee's spokesperson (e.g., spouse, adult family
member, or other responsible party) if the employee is unable to do so
personally. For example, if an employee's child has a severe asthma
attack and the employee takes the child to the emergency room, the
employee would not be required to leave his or her child in order to
report the absence while the child is receiving emergency treatment.
However, if the child's asthma attack required only the use of an
inhaler at home followed by a period of rest, the employee would be
expected to call the employer promptly after ensuring the child has
used the inhaler.
(b) Content of notice. An employee shall provide sufficient
information for an employer to reasonably determine whether the FMLA
may apply to the leave request. Depending on the situation, such
information may include that a condition renders the employee unable to
perform the functions of the job; that the employee is pregnant or has
been hospitalized overnight; whether the employee or the employee's
family member is under the continuing care of a health care provider;
if the leave is due to a qualifying exigency, that a covered military
member is on active duty or call to active duty status, that the
requested leave is for one of the reasons listed in Sec. 825.126(a),
and the anticipated duration of the absence; or if the leave is for a
family member that the condition renders the family member unable to
perform daily activities or that the family member is a covered
servicemember with a serious injury or illness; and the anticipated
duration of the absence, if known. When an employee seeks leave for the
first time for a FMLA-qualifying reason, the employee need not
expressly assert rights under the FMLA or even mention the FMLA. When
an employee seeks leave due to a qualifying reason, for which the
employer has previously provided the employee FMLA-protected leave,
the employee must specifically reference either the qualifying
reason for leave or the need for FMLA leave. Calling in "sick"
without providing more information will not be considered sufficient
notice to trigger an employer's obligations under the Act. The employer
will be expected to obtain any additional required information through
informal means. An employee has an obligation to respond to an employer's
questions designed to determine whether an absence is potentially FMLA-
qualifying. Failure to respond to reasonable employer inquiries
regarding the leave request may result in denial of FMLA protection if
the employer is unable to determine whether the leave is FMLA-
qualifying.
(c) Complying with employer policy. When the need for leave is not
foreseeable, an employee must comply with the employer's usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, an employer may require
employees to call a designated number or a specific individual to
request leave. However, if an employee requires emergency medical
treatment, he or she would not be required to follow the call-in
procedure until his or her condition is stabilized and he or she has
access to, and is able to use, a phone. Similarly, in the case of an
emergency requiring leave because of a FMLA-qualifying reason, written
advance notice pursuant to an employer's internal rules and procedures
may not be required when FMLA leave is involved. If an employee does
not comply with the employer's usual notice and procedural
requirements, and no unusual circumstances justify the failure to
comply, FMLA-protected leave may be delayed or denied.
The cert is key here since they're all the same ailment. I would be a lot less worried about the employee failing to notify properly than their getting the condition certified.
[quote user="6364961"]How do you force them to get the certification form filled out? This website issued a FMLA white paper that stated, "A certification that is not returned to the employer is not considered incomplete or insufficient, but constitutes a failure to provide certification." I may be making a mistake here, but at this point I am treating each absence as an individual circumstance and holding the employee accountable to our general attendance policy, not as several absences that could possibly be covered by FMLA. Should I be sending the employee a new FMLA packet everytime he comes into our ER or is admitted to the facility and basically start this process over each time?[/quote]
Well, no cert, no FMLA designation, unless you want to get into the habit of designating FMLA time in the absence of documentation. I generally require everyone to get a cert.
Do you know, for a fact, that this person has the ailment and that when they say they are gonig to the ER that they go to the ER and that when they are at the ER they are receiving treatment for the particular condition of which yo uare aware? This could be mitigating if, because of the nature of your job or position, you already know all the elements of the certification. I wouldn't be looking for ways to punish sick people, that never plays well in front of a jury, until after you have dilligently attempted and documented your efforts to bring this person into compliance.
Because it sounds like you may have medical information that is relevant to the person's situaton, I think you may be best served by discussing this with local counsel before seeking to enforce your attendance policy directly.