I'm in a pickle...

PAhr · August 2003

OK, need advice on this one. Employee is on intermittent leave for ongoing illness which requires regular doctor appointments, injections and medication. The certification only states intermittent leave for appointments. After a review of card punches, it has come to my attention that this employee has absences as far back as April that I cannot account for. I began the write up process today by bringing the employee in to discuss days missed. The employee said that all the days missed were because of migraines which he says are a side affect of the injections and medication. The employee also insists that he informed his manager every time he called off that it was for migraines and assumed that all absences were covered under FMLA. I stopped the disciplinary process at that point and gave the employee a new FMLA application. I then asked the manager about what the reasons were that the employee gave him when he called off. He said he was only told that the employee was sick. I reviewed the manager's documentation on call-offs and he has "illness" listed for just about everyone with the exceptions of a few vacations, funeral, PTO so what the employee actually said is anyone's guess.

The first issue I have is that the initial application states nothing about side affects the employee may have but I'm thinking that the doctor will certify the need for leave due to side effects (migraines). My second issue is what the employee actually said when he called off. The manager is not up on FMLA issues ("employee need not specifically request FMLA...") but if the employee did claim migraines then I think, we, as the employer had a duty to advise him of his FMLA rights before he reached this point in the disciplinary process. If the doctor certifies the leave for migraines how do I now go back and designate the leave as FMLA? Should I take the employee's word that all days missed were for migraines? I don't feel comfortable going back and excusing all the days but I also don't feel comfortable disciplining the employee if he honestly thought the days were covered under FMLA or should have been covered had the proper notification been given.

System · August 2003

I don't know that we DO have any obligation to suggest that the employee entertain intermittent FMLA for such things as periodically calling in sick. I look at intermittent leave as an "outcome" on the tail end of the process, rather than something a supervisor might explore up front with an employee. I don't think the employer or his representatives can be faulted for not being 'FMLA Sentinels' and for not constantly being on the alert to think to suggest the use of this federal statute to people who say they are calling in sick. And if it turns out that the situation does result in the approval of intermittent leave, I would not feel the need to try and go back to re-capture all similar absences and apply them to FMLA as well. If the attendance policy gets somebody in a pickle prior to the exploration of FMLA, that's life at the workplace. Can you imagine all the employees who would raise their hand and claim that their attendance slate should be wiped clean now that they know they can hang it all on FMLA covered mini-absences?

PAhr · August 2003

When I hear the key words "migraine, pregnant, asthma, words I can't pronounce..." I automatically run to my cabinet. I guess I can't expect the same from others. The problem I am having is that the employee is insisting that he told his manager about the migraines and believed that his documentation covered all aspects of his illness. Worst case scenario is I go forward with the write up, the employee feels blindsided, becomes angry, files a complaint and I go through a six month DOL investigation just to be told that we either did know or should have know that he had a qualifying condition and failed to advise him of his rights. More hassle than what it's worth.

My confidence level in the manager's documentation isn't all that high either. I find it hard to believe that 33 employees called off and all claimed "illness". Back in the day when I took call offs I was sometimes horrified at how graphic some employees got. One person actually told me that they were on the toilet as they were talking to me on the phone.... Oh, and he wanted to ellaborate. I have found that almost all employees want to explain why they aren't coming in. I even had one woman call in saying she was "sick and tired". When I repeated it as I was writing she further stated that she was "sick and tired of the B.S." (cleaned up). Of course I didn't mark that as "illness". I don't advise asking for excuses but if one is offered, write it down. If this employee really did call in stating migraines as the reason for his absences, I would have noticed the problem before this and advised him about FMLA.

healthVP · August 2003

Employers in fact DO have the obligation to discuss FMLA with employees who are demonstrating frequent intermittant absence due to an ongoing medical situation. It is not up to the employee to do so. It is not only an obligation but in the employers best interests because the actual time out in a given year could exceed 12 weeks if the employee requests or if offered FMLA after having already used a great deal of time prior to the FMLA certification date.

LindaS · August 2003

I have to disagree with HealthVP's statement regarding employer's obligations. There was a court case in 2001wherein an employee simply calling in "sick" does not provide the employer with enough information to suggest FMLA may be pertinent (Collins v. NTN-Bower Corp. 7th Cir.). Now if you have an employee who begins to deomonstrate significantly different behaviors at work, you may want to look into whether or not something more is happening but an employee simply calling in "sick" would not be enough for me to assume FMLA applies.

Keep in mind, employers are required to post the FMLA regulations in their facility and employees today have a wealth of information available to them so they are held to a certain amount of accountability regarding notifying their employer of a potentially serious health condition. In addition, the poster in this case indicates that the absences date back to April and are just now getting to a point of discipline so it is quite possible that the absences weren't frequent enough to warrant any further investigation by the employer.

LindaS · August 2003

I'm assuming you have a written attendance policy in place and as such, the employee has a certain amount of responsibility to notify someone should there be an FMLA qualifying reason for absences. I'm also going to assume you provide written verification to an employee when they have been approved for FMLA leave. If so, the employee's "assumption" that they were covered under FMLA without having any written verification of such an event was incorrect from the beginning. In addition, the employee should have notified their supervisor that their absences were FMLA covered when he notified them of the absence, not four months later.

I would not go back and count those days as FMLA. Simply calling in "sick" does not provide the employer with enough information to begin the FMLA process. IF you receive verification from the physician that migraines are actually a side effect of the medication, qualify it from here on out but make sure the employee is aware that calling in and stating they are "sick" does not provide you with enough information to automatically qualify it for FMLA.

I'm in a pickle...

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