FMLA

HR in NY

We have an employee who likes to use her sick time as soon as she gets it. We have counseled this employee numerous times and even had her sign a Last Chance Agreement last year when she ran out of time. She made it to her anniversary then starting using her time again right away. Our employees are alotted 40 hrs of sick time per year and it runs by the employees anniversary date. This employees anniversary is on 3/13. As of yesterday she was down to having just 4 hours left. Today she called in sick again with an apparent back problem. She stated in her message to her supervisor that she wanted to use FMLA for today because she knew she was almost out of sick time and she wanted to save what she had. Do we have to allow her use FMLA? What if she brings in a Dr's note, is it still our choice? Please help we have an abuser here.

Theresa Gegen TX

If she asks for FMLA, you need to start the paperwork, by requiring her to get a medical certification.

You can conditionally designate the leave as FMLA, and if she does not get the certification, she may be absent without leave. If she gets the certification and meets the basic eligibility critera, you must give her FMLA. But check your company policy, as it may require that her sick time and vaction time be used up concurrently with the FMLA.

IF she has a recurring problem, she may be entitled to intermittant FMLA.

I would not terminate this employee for abuse of sick leave without first seeking legal advice. It seems like she may have some legal rights that have not been fully explored by the company.

Rockie

Some words of advice on FMLA.

1. Make sure you designate in your policy that FMLA runs concurrent with any paid time off such as vacation and/or sick leave. This means that employees have to use their paid time off first and then finish out the 12 weeks with unpaid time. This prevents employees from "banking up" leave and then taking vacations after having been out for 12 weeks.

2. Make sure you desginate FMLA leave as being taken in a rolling 12 month period and not in a calendar year. If you let it run a calendar year, an employee can take FMLA the last 12 weeks of the year and then qualify again the first of the new year. The rolling year prevents them from doing this.