Enforcing policies...

lnelson

I have an ee who recently returned from FMLA leave. Upon his return his supervisor went over his job duties and work hours. The ee did not make any comments about not being able to oblige the job requirements. Same as before but will be properly enforced as with all other ees.

The next day the ee came in 30 minutes late no explanation, supervisor verbally warned ee this is not acceptable.

The ee prior to FMLA had a very bad attendance tardy record his supervisor was very laxed as far as documenting and disciplining although ee had been verbally warned several times by the VP of company regarding his attendance.

Would this be construed as retailation or just enforcing our policies all other ees need to follow also?

Due to his supervisors behavior in not documenting the ee was somewhat given special treatment prior to the FMLA does that need to continue after FMLA? Every aspect of his job is the same his work hours changed to 1 hr earlier to accomodate business necessity.

Just need some support or let me know if we are in the wrong in any way.
Dilemna
x:-/

Thanks,
Lisa

Crout

Well, it's never an optimal situation when you decide to enforce the rules AFTER the FML, but that sometimes happens. Just make sure that you're doing it for everyone, and make sure that you are using progressive discipline as appropriate. If you discipline progressively and clearly lay out the expectations the EE can't very well claim that the enforcement of the rules was a thunderbolt from the sky. Uh, don't forget to document.

deniseE

Begin with this ee as if it was the first offense....as hard as I'm sure it will be!! This is the penalty to be paid for not documenting.

As Crout suggested use progressive discipline...and discipline everyone equally...it cannot be retaliation if policies are enforced for everyone.

Good Luck!

System

Good advice, Crout and deniseE.

lnelson: I assume you have no reason to believe that his current tardy problem is related to his FMLA condition. If it were related, he might be entitled to intermittent FMLA leave. But you don't have to bring up the subject if he hasn't.

James Sokolowski
HRhero.com

lnelson

James -
No, he has used all 12wks allotted for FML. He was gone yesterday for Dr. appt was scheduled, he e-mailed his sup yesterday to say he is having a problem with the hours. Sup emailed back stating we expect him in at 7:30 today and it will be discussed with upper mgmt. He showed at 11:00am today stated daycare problem.

We are just trying to enforce the policies everyone else has to follow with this ee. How can we do that if it was so laxed before and now it is not.

HELP!

Lisa

Don D

I would also document that the VP counseled the employee about attendance on several occasions, even if you cannot arrive at a date when it occurred. Ballpark it and have the VP sign it.

lnelson

Thanks for the advice I will make sure supervisor continues to document any occurances in the future.

As for the VP verbal warnings I have already documented those.

Thank you.
Lisa

lnelson

So far ee has been given a verbal warning almost everyday for tardiness he is showing up anywhere from 20 min late to 4hrs late. Today I advised the sup to give written warning when ee shows up not here yet.

What else can we do?

Lisa

marc

Make sure your documentation lays out the nature of the company's response if these unacceptable attendance habits continue. You should include the final warning when you get to that point, in no uncertain terms, clearly indicate the EE will be termed upon the very next occurrence.

As others have said, this will only work if you are truly consistent with this type of policy for everyone. Otherwise it looks like retaliation for the FML situation.

lnelson

marc -
Thanks for you response. It would probably seem like retaliation to this one ee because he was never disciplined before but ALL other ee have set schedules and they follow it, if they do not they would be disciplined accordingly.

Many things depend on people being here at the time they are scheduled.

Just a side note he called in this morning stating he will be late due to headache showed up at 9:40am worked until 2:15pm when his supervisor was gone stating still had a headache. Is this a problem??

marc

Another issue not addressed earlier is for the company to require a medical release to return to work. If you have such a release, it should mention any restrictions, or need for FML to resume on an intermittent basis if the medical condition so warrants it. Without some sort of note from the doctor, you are allowing the EE to self-diagnose his condition and showing up when he wants to.

One of the things I would cover in a meeting with this employee, is whether or not this recent absenteesim is a result of his medical condition. If so, I would want medical certification - have the doctor fill out the DOL paperwork. This paperwork will tell you about any continueing condition and the impact on the EEs ability to work at your company.

Do this before you term or otherwise conduct adverse employment actions.

lnelson

He did return with fitness for duty filled out by ee and his dr. No restrictions were noted.

Can he receive intermittent FML if he already used all 12wks for this year?

Also today was the first time he used the headache as reason for being late. Usually it is daycare or no reason at all. Just says he is unable to make it here at the specified time but when told to discuss with Sup & VP he does not follow through.

Lisa

marc

No federal provision for more FML during the 12 months. It does not sound like he has a leg to stand on. I would begin documenting his poor attendance and strictly follow your policy all the way to either termination or corrected behavior.

The fact that he is not following through with discussion and getting away with it shows that the Sup and VP are LETTING him do this. They are almost as culpable as this EE and should be written up also, for not following company policy. I realize you are probably not in a positon to do this, but their direct boss, probably the President, should be on them to follow the company guidelines and quit playing favorites. They have helped create this monster.

lnelson

The Sup & VP are behind me on documenting and disciplining this ee. They are also aware that due to their lack of disciplining prior to FML it is now causing a problem. The sup is trying very hard to document everything and to discipline ee accordingly. It is a start.

The sup has been letting the ee know his attendance is not acceptable everytime he is late and finally gave him written disciplinary.

The problem is I do not see the ee doing better about his attendance and the sup does not want to lose an ee in this dept (very busy).



Lisa

jade4868

Lisa:

Just a suggestion, but you should consider whether the basis for the FMLA leave could now constitute a disability under the ADA. If so, and that has a bearing on his ability to come to work on time, it "might" be considered to be a reasonable accommodation to change his work hours or schedule. Food for thought.

mwild31

[font size="1" color="#FF0000"]LAST EDITED ON 07-07-04 AT 07:53PM (CST)[/font][br][br]lnelson - I've no doubt the ee has started to slant his excuses to medical conditions x;-) & bet it will only get worse before it gets better as I'm sure the ee has picked up on the clues that excuses involving "medical" conditions are treated differently than the more abstract response of "daycare issues".

If the sup/manager are not having a lot of luck with him, how does your company feel about you in HR talking with him? Sometimes chatting with HR has a way of appropriately shaking folks up. If you can or if not you then the sup/manager could sit him down and outline where he's at with FMLA entitlement (zero days/hours left & a clean return to work form from doc.), his vacation/sick or PTO balance is zero & then explain the attendance policy to him & put him on a final warning program, with one more instance resulting in termination, unless accompanied by a doc's note. Even though the documentation didn't happen in a timely manner (ideal) the VP stated he did talk to this ee in the past - that and his current behavior is enough to carry you through this situation. If the guy files for retaliation, it sure sounds to me as though you have enough on him to press your point home. You're not letting him go because he took FMLA, you're letting him go (if it comes to that) because he can't get to work on time or at all.

#-o - I just saw this in your last post lisa:

"The problem is I do not see the ee doing better about his attendance and the sup does not want to lose an ee in this dept (very busy)."

Forget everything I just said & just go with the flow, if you can't let go of him, then discipline or document all you want, but you're left with very little "teeth" in corrective action. Sorry! x:-(

lnelson

Just a follow up -

Ee received written disciplinary yesterday by sup at 9:40am when ee shows up, sup leaves at approx 1:45pm, ee then states at 2:15pm he still has headache needs to leave. My question: Why wait until sup leaves to realise can't last anymore?


Ee did not show to work today called in stated has a headache planning on going to doctor.

From all the info I have this case does not conform to ADA because it does not affect major life activities and the hours we have him working are normal business hours. We are only open from 7:00am to 5:00pm. How accomodating do we have to be? Job is not physical in anyway.

I know I'm stressing over this, it just is not sitting well with me, the ee has been very unethical in his approach for answers or trying to catch us in a lie or mistake. We have been forthcoming with all info the only diffence now is the enforcing of our policies with him.
I just do not have a good feeling here.
Too many issues with this one ee.

SORRY for the long post just venting...(need emoticon with smoke coming out of the ears)

Thanks,
Lisa

Gillian3

This really doesn't help much, but the ADA is not the issue if the guy is ill. The ADA defines a covered disability as one which "substantially limits" a major life activity. The equivalent California regs (Fair Employment and Housing Act) says a covered disability is one which "limits" a major life activity. There is a world of difference as you may find out when the guy comes back with some sort of disability and you terminate him later. Maybe you should act based upon the attendance problem that you are having. If you get caught in an issue later you can always reinstate him if necessary, or you can fight it.

Pork

Inelson: After reading all the way through this thread it is my opinion you have a BEHAVIOR issue with both the ee and the company management. You (the company) has successfully transferred the responsibility for the specific behavior of the ee to the shoulders of the company!!!

To correct this environment you should probably take the led and have ajoint meeting with the ee and his management chain. Layout the specific behavior that is not cutting it and the level of specific behavior that is acceptable discuss his interest in his future with the company and openly discuss the level of discipline that will be forth comoing when his/her behaviors to not rise to the threshold to retain the position in which he/she is physically occupying. Get his/her commitment to achieve an acceptable level of specific behaviors. When he/she fails then the companies' specific behaviors will prevail and the ee suffers the consequence of termination. Document the expectations and time lines and the follow-up actions in accordance with the agreement for success.

One way or another your frustrations and headaches will go away and all will feel better for having tried!

PORK

lnelson

Thanks PORK -

I agree with what you are saying and will be having a meeting upon the ees return. Out today with dr note.

Lisa

lnelson

Another follow up -

EE has not returned to work yet. He has called in everyday since 7/7. I received a revised dr note to cover 7/8, 7/9, 7/12, 7/13. I called dr office they said he was seen on 7/8 and has called them to submit new note due to him still not feeling well. He is not here today also.

The thing is the dr. is on vacation this week so the nurse is sending these notes to me. Is this an acceptable procedure?