Would this be a precedent?

LindaS

I have an employee who suffered a significant brain injury last summer that required extensive surgery that resulted in his being off work for 6 months (the dr's thought it would be longer). He came back earlier than anyone thought he would but over the course of the past several weeks, he has been on a "downhill slide". After discussing the situation with him he went to his physician who recommended shortening his hours, which we did but this doesn't seem to be helping anything.

This morning he came to me and admitted he is unable to read (a safety hazard), has forgotten the names of most of his co-workers and forgets how to do his job. In the course of our discussion we granted him a leave of absence to allow him to get the treatment he needs that will hopefully allow him to return to work. At this point we don't know how long that will be which creates a problem..

We are unionized and no matter which way I look at it, this EE has exhaused all his FMLA leave and hasn't worked the requisite hours to qualify for another 12 weeks. We have employees who have been abusing their FMLA leave and I am concerned that by granting this EE an extended leave for an undetermined amount of time will come back to haunt us should another employee run out of their FMLA allotment and need additional time off.

I want to help this individual because he truly does want to work but needs this additonal time off but I'm looking at the bigger picture and wondering if being a good samaritan will come back to hanut me later.

Any suggestions?

Don D

Yes. You are unionized and it will haunt you. I don't have the 'fix' for your dilemma but salute you for what you are considering doing. This post should be the preamble or forward to the next set of printed materials they hand out at Union Rep refresher training at whatever resort they meet at later in the year. It should be mandatory reading prior to having their heads filled with anti-employer mush. Your attitude and concern for employees counters all that union propaganda about uncaring employers, slave drivers, and front-office mistreatment that employees must be protected from.th-up

ray a

Even in a non-union shop I struggle with this dilemma. There definitely are people who abuse the time off policies, including FMLA. Then there is the occassional ee who has a legitimate need, such as the one you site. We want to do the right thing for that person, treat them with respect and do what we can to help them in their time of need, but then question whether it will bite us down the road when someone else expects, or demands the same treatment. At times I have been forced by my boss at corporate to take a hard line approach in situations like this and have to admit, it bothers me. But, it does keep me out of court defending myself against a discrimination charge.

LindaS

Would either of you recommend having a discussion with the union committee in an attempt to allow this individual the time off WITHOUT creating a precedent or would this probably create more harm than good?

Whatever

No one has a longer memory than a union. Would never bring it up to a union committee, it would come back to haunt me if they even knew I thought about it.

Crout

Hmmm, that's really interesting. My gut response is to tell you that you'd better believe the union would use your kindness against you in the future. However, I'm wondering if your suggestion to in effect create a sidebar agreement to protect you from a precedent would work. We do sidebars all the time for things like salary increases for certain job categories that are deemed critical, and every one contains language to avoid setting any precedents. It would seem that singling out an individual for preferential treatment undermines the whole concept of collective bargaining. Would that be seen as an unfair labor practice? I'm not sure, but it's interesting to ponder. What do all the Forum-Foax (pronounced "folks") think? (I've settled on Forum-Foax as a name by the way. I just can't handle Forumites anymore)

Hatchetman

Without knowing more about the employee's brain injury, surgery and recovery, I suggest you take a look at ADA, to determine if he is eligible for reasonable accommodation which could include a leave for further recovery, even if he is not eligble for FMLA.

Balloonman

Very easy, based on your policy you terminate the individual, end of discusssion. Oh wait, we are human, so is he, shoot that makes it harder. I too recall making exception that were agreed to be non-precedant setting. Think about it, how many employees are you going to have that suffer serious brain injury? To grant additional leave, with a date that if unable to work the employment would be terminated is one route. Question, does this person have long term disability? If so then terming them because they cannot work may actually be in their best interest, I know that sounds ironic.
Linda, the important thing we all see and feel is the struggle you are having in dealing with the human side of the situation. You are a sweetheart, and there is no way around the fact that you are gonna feel like hell when you do have to let him go. I have a feeling that he probably will never be able to come back to work, and all that you will be doing is delaying the inevitable. Still I understand your reasoning.
My $0.02 worth.
DJ The Balloonman

Pork

DJ THE BALLOON MAN IS near my positioning on the subject. A long term disability covered by medicare/medicade/Social Security Disability is far greater value to the individual than our concerns and worries about precedent setting and court/legal concerns.

Some cases demand our opportunity to terminate as the best course of action. Always remember the bottom line is: one must be unemployed for 6 months before disability will normally kick-in. Given any enrollment situation out of the kindness or your good faith intentions is also hurting the individual's timing and delay for the greater valued SSI Disability and medical coverage for his life time of care.

Never, never get between some one's opportunity for long term care, when appropriate. It reads to me as very close to our case with brain cancer surgery, followed with surgery for thyroid cancer, FMLA used up, FMLA extended company medical plan totaling 26 weeks used up; he came back on light duty, worked him as an assistant driver riding with his peers while waiting for the SS Disability to get approved. After six weeks, he was notified he was disapproved because he was still employed!!! Were we wrong? Yes, because I knew it would come to this, but the ee was loved by every one and every one wanted to hang in there with him, and we still are!!!

In October he'll pass the mark for another FMLA, maybe we'll get him well and back to driving an 18 wheeler. Medically, he has been given a good report, some prayers have been answered. Mentally, he appears to be gaining some real positive happenings. Were we wrong? yes is still my position, because the value, at his age and medically history, he should be living a quality life on SS Disability and medicare/medicaid.

PORK

Whirlwind

Providing an extended leave as an ADA accommodation is an excellent suggestion. Failing that, is it possible that you could offer him something that would not form an undesirable precedent? One idea: Offer extended leave without the FMLA benefits (i.e., no employer contribution to insurance and no guarantee of coming back to the same job). Another possibility: Terminate him but offer him first available job upon his recovery. I'm not in a union setting, so I don't know if either of these ideas would fly, but I've used them both with some success.

Hunter1

My experience has been that you can agree to almost anything you want outside the labor agreement as long as you do it with the union, not with the individual. It can be made non precedent setting. The ADA route might be the best possible, though in this instance. Careful, of course, if you do that, you are 'qualifying' him regardless of a disability. You considered him disabled.

LindaS

Thank you all for your assistance. After speaking with our Manufacturing Director this morning I had a short meeting with the union president, off the record of course, and brought him up to date on the situation. He was already aware of it as the EE stopped by him before he left this morning and said, "goodbye". The union president, after I outlined what few options we have, was in agreement that we should grant the LOA on a non-precedent setting basis but it has to go through the whole committee before any final decisions are made.

I think the union president is smart enough to realize that their (the committee's)failure to agree to this situation would amount to political suicide. The committee has taken quite a hit from EEs that are unhapy with the way they run things and once word got out that we (the company) had to terminated this much liked employee because the union wouldn't agree to allow us to grant him this LOA, things would get pretty ugly.

In all honesty I don't expect the EE to be able to return to his former job even after additional treatment. The injury and subsequent problems were very damaging but he has tried so hard over the past year and to pull the rug out from under him at this point seems heartless. I would rather grant him this time and allow him and his phyicians to figure out what to do rather then tell him, after all he's been through, that we are terminating his employment.

Don D

At the risk of again being told I am brash, I feel that the union should be trusted about as far as you can sling one of them with one arm. Not that they are not human, indeed they are. But their function involves, in part, keeping you tied in knots and it is their role, in part, to never forget a precedent even if they have to make one up. Codifying a precedent, by meeting with them and agreeing and having notes, will make it awfully easy for them to throw back at you next year, which they will. Not only will the union officers know, every breathing soul in the facility will know. I agree with exploring ADA but remember ADA does not protect an individual who cannot return to work on a long lasting disability, then we get into the undefined definitions. Best of luck on this one. Again, I note your humane-ness. Don't mean to embarass you.

ForumFoux or whatever it is is entirely too risky to try and pronounce on the fly.