FMLA-ending... long story
robinhrgirl
28 Posts
Let me give an overview of the facts.
1. Employee turns in resignation.
2. She is allowed to retract to maintain benefits eligibility.
3. Employee goes on FMLA and collects sick leave/available vacation time.
4. February 6th, FMLA is up.
5. Letter goes out to employee 1-28-04 regarding the end of FMLA and requesting a letter from her physician stating her ability or inability to return to work.
6. Letter received 2-2-04 stating periodic absences needed on FMLA.
7. Employee contacted and notified that the letter isn't what was asked for.
8. Call from physician's office stating that the there would be no absolute yes or no letter. The physician was not comfortable with making the disability determination.
9. Second letter received from original physician making the certification for FMLA stating that the EE might need to take sick leave periodically for the illnesses being treated. (still not what we wanted)
10. Talked to the ee and told her that the 2nd letter still didn't specify ability to return to work.
11. Third letter received from different doctor in same practice as the first contradicting the first doctor's letter.
Any suggestions?
1. Employee turns in resignation.
2. She is allowed to retract to maintain benefits eligibility.
3. Employee goes on FMLA and collects sick leave/available vacation time.
4. February 6th, FMLA is up.
5. Letter goes out to employee 1-28-04 regarding the end of FMLA and requesting a letter from her physician stating her ability or inability to return to work.
6. Letter received 2-2-04 stating periodic absences needed on FMLA.
7. Employee contacted and notified that the letter isn't what was asked for.
8. Call from physician's office stating that the there would be no absolute yes or no letter. The physician was not comfortable with making the disability determination.
9. Second letter received from original physician making the certification for FMLA stating that the EE might need to take sick leave periodically for the illnesses being treated. (still not what we wanted)
10. Talked to the ee and told her that the 2nd letter still didn't specify ability to return to work.
11. Third letter received from different doctor in same practice as the first contradicting the first doctor's letter.
Any suggestions?
Comments
The original letter we sent her was sent certified. I agree completely, that we should terminate at the end of her 60 days. It seems obvious to me that this a person "milking" the system. I am unsuccessful so far in convincing our administration that this is the right thing to do.
They may especially disagree since the first doctor's letter by interpretation stated that EE could come back to work but may need to be gone intermittently/periodically for the illness and the second doctor's letter stated that she would be unable to return for an indefinite period of time due to her illness.
What I'm looking for is some supporting statements from other HR experts.
We did receive a second letter from another Dr in the same office/practice, who has treated this employee for only one of the two ailments listed on the original FMLA pysicians certification. He states:
Employee has been my patient for several years. She suffers from blah, blah, blah and will be unable to return to work for an indefinite amount of time due to this.
This is not the doctor who originally completed the FMLA Physicians Cert. and again he has not treated her for both illnesses.
Everything you've said is correct. I don't think I'm missing anything. I would have already made the decision to terminate the employee, but the admin. is balking.
To answer your question about additional intermittent leave (remember this employee has a lot of sick leave and vacation time)yes, she could actually take paid leave another 60 days or so. That is if we continue to employ her knowing she has no intention of returning to work, ever!
The problem on the doctor's letters is that we got a yea and a nay. So then what?
Also include with that letter a full description of her job and it's requirements, including physical requirements.
Tell her in your letter that she should present that job description to her physician and ask that he review it and provide a 'Fitness For Duty' statement based on his evaluation of that document.
Give her a date no more than 15 days out to have the documents in your hands.
I base all of this delicate caution on my reading that you are really doubtful of these doctor's notes and you have some real solid basis for your conclusion that something's going on here. If that is not correct, file the paperwork and call her back to work. But, do not terminate ultil you have done as I suggested and create a defensible paper trail of your actions and requests.
This is just my opinion of course.
I don't think you're going to get much more out of the first doctor. You can't make a doc give you a definite answer if he doesn't want to -- either because he feels professionally unable to or because he's just hedging his bets legally.
Since you got a "nay" out of the second doc, and especially since that doc is in the same practice, I would go with that. I'm extremely surprised this ee still has paid leave after exhausting FMLA, and I don't know whether that's because she had a ton of leave or because you don't run FMLA concurrently with paid leave. Either way -- and others may differ greatly with me on this one -- I don't believe in not letting people exhaust all applicable leave prior to termination (except for maybe in cases of gross misconduct). To me, to extend a benefit and then say an ee can't use it is basically unfair. You're closing the barn door after the cows are out. In other words, either your leave policies are too generous (i.e., ees earn too much and/or are allowed to carry over too much and/or they are not required to run paid leave concurrently with FMLA), in which case you might want to re-visit those, or they're not too generous in terms of your company's philosophy, in which case you let them use the leave they earn with appropriate documentation.
To be more succinct, if this were my kettle of fish, I would let her run out her applicable leave and then terminate her if she is still not released to return to work.
Thank you for giving me something to laugh about!
I personally would not have allowed her to retract the resignation. I sound like a hard***, but I can't believe my administration is so soft.
I guarantee the district will end up paying her all of her sick leave/vac. until it is gone, gone, gone. We have already replaced her position, so we are paying her replacement's salary as well as the fmla-employee who has no intention of returning.
Even the KS Assoc. of School Boards recommended allowing her to continue collecting paid leave to escape possible future litigation. Litigation for what I haven't figured out.
Thank you all for your help and letting me "blow off some steam."
I think you hit the nail on the head! If we didn't have such a generous leave policy, I wouldn't feel the need to question exhausting EE's paid leave.
Thanks,
Robin