FMLA--Write-up anyway?

justshrug · November 2003

I'm a newbie, so go easy on me. I have been reading the forum for about a month now and know this is the place to get my question answered. I am an Employee Relations Specialist in an HR department with 10 staff members. In my role, I work directly with the HR Director in addressing any work related employee issues. I recently had a situation in which it was determined that an employee would qualify for FMLA (fibromyalgia). My director has said that it doesn't matter if she's on FMLA, we can still "write her up" for her absences as long as we don't hold them against her. The point in doing that?? I'm not sure. I completely disagreed with him, but thought I would use my resources and see what other thoughts are out there.

HRQ · November 2003

Even if the intent of a "write up" is only to document, not necessarily to be held against an employee, the perception of the employee will be that her absences are being held against her.

I wonder if your director meant you should document the absences for FMLA tracking purposes. OR if the employee hasn't followed procedure when notifying her supervisor of her absences, a write up could be in order.

Nrdgrrl · November 2003

I agree with HRQ.

Find out what the "write up" is for. If you document absences for all ee's you should do the same with her, BUT you would take no disciplinary action or even talk to her about it. Of course you must document how many days of FML she is using.

NrdGrrl

pecohr · November 2003

Have a talk with your director and have her explain her reasoning on the "write up". You should seek clarification on any issue or directive if you have questions. We can speculate her but it would probably help you more to talk with her and then repost.

Good luck

HRsage · November 2003

First, Welcome to the Forum! We always go easy on the newbies, it's the veterans that we give a hard time to.

Anyway, I agree with the others, you really need to get clarification on what your Director meant by the "write up". If it's only to document the FML time then that makes sense, but then it's just documentation and not really a "write up". To me a Write Up tends to have a correlation with disciplinary action.

marc · November 2003

Agree with above, if as HRSage says, it is just terminology, don't worry about it. If it is disciplinary in nature, then you are getting on some thin ice and could be setting yourself up for some issues that look like retaliation for FML claims.

Don D · November 2003

I agree with HRsage. The term 'write up' typically carries a negative, disciplinary connotation. I've not heard it used in other contexts. Your director is wrong if she is suggesting you 'write up' this employee in a punitive context. I hope you misunderstood her. Yes, we're gentle with newbies. It's the old hands like me they give a hard time to.........see ya. x:-)

mwild31 · November 2003

Hi justshrug - great screen name by the way! I'm curious - is this employee's leave intermittent & therefore set to a specific schedule, i.e. doctor's note says no more that 6 hours per day - and so a new schedule agreement is creating reflecting the new hours - and she's now not meeting that agreement?

justshrug · November 2003

The employee had been getting disciplined by her supervisor for attendance issues. She came to me this week and informed me about her fibromyalgia (which she had already told her supervisor about, but of course the supervisor didn't do anything with the information). From there it was determined that the ee would qualify for FMLA. My director wants to contine to give the ee written warnings for poor attendance(2nd step in our progressive disciplinary process), but not use them for anything. ?? From what I've read so far, I'm gonna guess that that isn't such a good idea. Thanks for much for all your feedback.

Whatever · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-05-03 AT 09:35AM (CST)[/font][p]You have a supervisor and a director in need of training. If an employee advises a supervisor that they have a medical problem ( especially one that turns out would have been covered by FMLA), it is the supervisor's responsibility to advise HR. It is not their job to ignore the information and follow a progressive disciplinary process. You cannot discipline an employee for absences and/or tardiness that is covered under FMLA.

Don D · November 2003

Whatever is correct. The DOL investigator will eat your lunch if she learns that you did in fact impose any sort of discipline in a situation like this. Documentation that won't be used and is made just to be made is useless, nonsensical, and in this case, exposes your company. It can never be used for any purpose. You might as well document the temperature at 10 a.m. each day.

HRQ · November 2003

I don't know what fibromyalgia is, so I may sound ignorant in this post. Be nice please!

Back to my question: is she on intermittent leave and not following calling-off procedures when she can't work or will be late? Even under FMLA, if she's scheduled to work, doesn't call and just plain shows up late or no shows with no excuse other than "my fibromyalgia was acting up" then she deserves to be written up. If she's NOT on intermittent leave, rather full leave, then she should not be written up for the missed shifts.

Maybe I missed a detail somewhere...

LindaS · November 2003

The idea that a supervisor or director is going to utilize progressive discipline and not "doing anything" with it is ludicrious. Imange a management person starting a meeting with, "I'm going to give you this written warning but it doesn't mean anything" - what a crock!!! The recepient of the "warning" will know that the supervisor doesn't agree with the absences and will feel compelled NOT to take time that is guaranteed by federal law - something an employer is banned from doing explicitly in the regulations. I would GENTLY remind the director (I'm assuming he's your boss) that this cannot be done under the FMLA regulations and that continued engagement in this type of behavior may result in the company (and him, personally) having to write some pretty big checks down the line.

Good luck!

HR in Okla · November 2003

To HRQ, check out the internet for info on Fibromyalgia. I had an employee with it and learned that is considered an ADA protected condition. My employee made full use of FMLA, usually taking off 12 weeks every year.

I think HRQ has made a really valid point, is the person following appropriate procedures for their time off? I'm dealing with one now that has bipolar disorder. We want to do all we can to support the employee, but we also need the work done. Intermittant FMLA can be tough to deal with.

mwild31 · November 2003

I got it now! Neither the supervisor nor the employee mentioned to HR that the employee was having attendance issues until the supervisor wanted to take disciplinary action. Then, as you (HR) are following up on the issue, you discover that the employee was missing time due to her condition, fibromyalgia. NOW, not then, she will be covered by FMLA. So this really isn't about an intermittent schedule not being worked, but an attendance issue run amok & now discovery that the employee is sick. Here's what to do:

1. Have the employee go to her doctor and have that doctor complete a Certification of Health Care Provider form. On the form, the provider must state the 'approximate date the condition commenced'. If these days cover the employee, then she's covered.

2. Don't write the employee up - I don't know the details involved here, just what you posted, but don't write her up. If the employee is covered by her doctor, then you guys will be in trouble - p.s. there's no such thing as a write-up that doesn't mean anything.

3. Train the Director (by the way - is this director a CFO or former CFO?) and the supervisors in your company on FMLA and the company's responsibilities to it's employees.

4. If the director gives you guff on this course of action - have he/she hop on the forum & we'll teach 'em!

justshrug · November 2003

Yes MWild, that is EXACTLY the situation. We have already taken the step of getting the ee to go to her doc. and I'm sure that we will have more than enough reason for her to qualify for FMLA. I'm also sure that a lot of her absences will be able to be linked to her dealing with fibromyalgia. As for my director, he likes to split hairs--Sometimes all he ends up with is a bunch of split ends. He's never been a CFO but he is a lawyer. Sometimes that's a strength and sometimes it's a weakness. I have expressed my strong disagreement with his approach and only time will tell if he will agree with me or not. Thank you all so much for all of your input.

mwild31 · November 2003

Very scary :-S - he's a lawyer and he wants to pursue the action you described in your first post - good luck my friend.

One other thing I should have added to my last post, I believe it was HRQ that stated something to the affect that if, once the paperwork comes back from the doctor & the doctor states a need for intermittent leave, then create a new schedule agreement that encompasses the doctors advice. Bingo - good advice. For example: one of our employees was also diagnosed with the same disease and she could only work 4 hours per day. We created a new schedule agreement that stated when she would start and end each day & how many days she would work each week. She followed the agreement, but if she hadn't, then our normal attendance polices would have applied & she could have faced disciplinary action for failure to comply. This is the next step in the process once the paperwork comes back - set up a new schedule agreement. Welcome to the forum!

HGHAHR · November 2003

I, too, have had to address a fibromyalgia case. One important thing to understand is both its unpredictable nature and the fact that mornings are always the worst for the ee. What we did was create a core set of hours that the ee would be in the office. We allowed her to flex the balance of her hours according to how she was feeling each day to make up her workweek. Fortunately in this job required a flexible schedule to meet with community members on the evenings and weekends so it worked well.

mwild31 · November 2003

"One important thing to understand is both its unpredictable nature and the fact that mornings are always the worst for the ee."

Every case is different, for our employee - it was the afternoons.

FMLA--Write-up anyway?

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