trouble child

T · January 2006

I have an ee who's daughter (14 years old)stays in trouble at school and with the law. She has runaway several times, gets in fights at school, has been suspended and she's had the law called out on her. Now, her mother who is my ee, is wanting to get her counselling. Surely this is not something we have to accomodate under the FMLA? We will let the ee take off as she has requested 1 time per month for the counselling sessions. She just doesn't want to use her accrued time off for these, which we do not mandate they use their time when they are on FMLA.

Please tell me counselling doesn't fall under FMLA. There is no doctor prescribing this treatment, just recommended by school nurses, staff and police dept.

Thanks.
t

Whatever · January 2006

Counselling could fall under FMLA. The recommendation does not have to be from a doctor just an authorized health care provider as defined by the law (which is not a school nurse, but does include nurse practitioner). Give her the paperwork and see what it says.

LarryC · January 2006

Clinical psychologists also qualify as do other assorted practioners. I'm with Whatever. Give her the medical certification paperwork and see what happens. If she qualifies, she qualifies.

Why would you not want to accommodate an employee with this situation? I agree that 12 weeks probably isn't enough to bring this brat out of her ways, but you do what you can do, don't you?

T · January 2006

I did give her the certification forms on Friday.

I would love to accommodate this employee, bad thing is, as soon as others find out we are accommodating her, then everyone with a problem child will be wanting an accommodation. Once we had an ee file a workers comp on their wrist (carpul tunnel), I had 3 others right behind her do the same thing.

-t

LarryC · January 2006

Good point, T. I agree that these situations can be "contagious", but you do have the medical cert thing to sort out the real cases. Plus you can ask for a medical cert from your own doctor too.

Whirlwind · February 2006

Just curious -- why would you choose to have a policy that does not require ee's to use their accrued leave while on FMLA?

T · February 2006

1. let's say an employee takes vacation in February, well in July, they have to have surgery, needing time off for fmla. They don't have any accrued vacation time, but they still get their 12 weeks unpaid fmla. So is it fair to make the person who knows they have to have surgery use their vacation time just because they don't have plans.???
2. I also had an ee who had scheduled and paid for a cruise that was going to be in September. Well, in February she got sick and had to have surgery, she was out for 2 weeks. How could I tell her she couldn't go on the cruise that she had already paid for?

To tell you the truth, I really don't know. This is confusing!!

-t

Whirlwind · February 2006

In both cases, you've given valid examples of how your policy benefits employees. I hadn't thought of it like that because I've never had the option of allowing our ee's to take unpaid leave -- FMLA or otherwise -- when they have paid leave available (state agency law). I think your policy benefits employees way more than employers, but it's nice to have the option to go that route. Thanks for clarifying.

LindaS · February 2006

T -

While I can empathize with your desire to work with, and assist, employees the bottom line is that you always have the option of granting unpaid excused leave.

In both of your examples you have the option of granting the employee unpaid leave after they have exhausted their paid leave due to FMLA. Here's another example, say you have an employee who took their entire 12 weeks of leave, all of it unpaid. During this 12 weeks you struggled to get this EEs work done as you were short a person. Now, after having been gone for 12 weeks the EE comes to you and says they want to use their vacation for some additional time off. Because you did not mandate they use their paid time you don't have much of a choice but to grant them their time off for vacation. NOW you have an additional period of time that you have to have their job covered PLUS you have some upset employees because this EE just had three months off PLUS some additional time.

I think it is best that the EE be required to use any available paid time off during their FMLA time and if they want/need additional time off it is taken unpaid and needs to be approved through management.

Just my thoughts.

T · February 2006

It depends on what day I take a look at our FMLA policy on how I think it should be. You're scenario with granting unpaid leave to someone who has already used their accrued time in conjuction with FMLA sounds great. But what do I do when the employees see what is happening and then your other employees start wanting permission for unpaid leave. It's all a vicious circle. My employees, maybe like many of yours, know the system and will take what they can get and if they know they will be having surgery or something that constitutes FMLA they will plan their vacation before that then 6 weeks or so later will come to you requesting FMLA.

I also attended a seminar with a fellow co-worker, the speaker at the seminar said if I mandate that my ee's on FMLA leave use their accrued time and I start progressive discipline on them at a later date for unexcused absences, not related to the FMLA, that I cannot term. their employment.

Like I said before it's all a vicious circle.

-t

Whirlwind · February 2006

I tend to agree that granting unpaid leave on a discretionary basis after paid leave has been exhausted for FMLA presents some equity problems unless you have a very clearly spelled-out policy about the circumstances under which you will and won't do so. I guess that's why, on balance, I'm glad I'm "stuck" with the policy I've got. More often than not, it's worked out for the best. The few times I've wished I had more discretion wouldn't be worth the headaches in the long run.

That said, I respectfully disagree with the seminar speaker. Especially in Texas, which is a strong at-will state. The only way I can imagine that you would be at risk in applying progressive discipline for unexcused absences after leave is exhausted in conjunction with FMLA is if you did so in a discriminatory fashion. One example of the latter would be if the absence should be part of an ADA accommodation, or if you treated different races disparately in applying your attendance policy.

LindaS · February 2006

As far as those EEs who use their vacation THEN FMLA, there's not much you can do about it but for those who use all their FMLA and THEN want vacation, that is where this type of policy comes in.

I also agree that you would need to have specific guidelines regardng what would constitute approved leave should they exhaust all their vacation in conjunction with their FMLA but I can tell you one thing, since we implemented the mandated use of any available vacation with FMLA approved leave, the amount of FMLA leave that is being used has significantly been reduced.

One other thought, do you have some type of STD policy? If so, maybe one option would be to use what we have here to address FMLA usage. Our policy states that aEEs taking approved FMLA leave that does not qualify for payment under our STD policy are required to use any available paid time off prior to unpaid leave. This way, EEs who need to be off for several weeks due to surgery are NOT required to use their vacation time while they are on FMLA leave but those that take the one day here, one day there, are required. We are union and they agreed with this with our last contract.

Just a thought.

T · February 2006

WOW, all the responses to this is great. Unfortunately, FMLA is a disaster for the employer to begin with. However, speaking from an employee standpoint, it's good to know I can take off work to be with my child who is in the hospital, or whatever the case may be, and not have to worry about losing my job.

We do not have an STD policy. Just FMLA and accrued time. I hate to say this, but I think it's time I take another look at our policy on mandating the use of accrued time for FMLA.

Thanks.
-t

trouble child

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