FMLA - Endless Problem

WO

Help, please.

I have an employee with a chronic attendance/tardy problem. The pattern is to leave a message on the machine stating she will be late due to illness (usually 1-3 hours). This continues until she exhausts all paid leave banks then waits until she accrues more. At her pre-disciplinary action meeting she reveals it is due to depression.

She insists it is not a disability and wants no "special treatment". She mentions she is under a doctor's care. Her insistence on not wanting accomodation and questionable disability may let us off the ADA hook. But what about FMLA?

She could conceivably consistently use FMLA in one hour increments throughout the rest of her career, (she's under 30) never fully using the 12 weeks until she is once again eligible for another 12 weeks!!!! Could this be possible?

She has been progressively disciplined through 3 day suspension without grievance. However now I wonder if I shouldn't provide her with a "Certificate of Healthcare Provider" knowing it will most likely come back eligible.

Her supervisor and co-workers are understandably frustrated with carrying the extra work.

Any help would be appreciated.

Theresa Gegen TX

She has given enough notice for you to respond with FMLA. I would give her the certification form and make her use up her FMLA provided that her doctor certifies her for intermittant leave. Unfortunately, if her doctor certifies her, the company will have to provide the leave and her right to intermittant leave could go on forever. In fact, we have had several earlier discussions here about "what if an employee refuses to take FMLA leave" but says they will use other leave. If your policy requires that leaves be taken concurrently, and she won't get FMLA in, she could be absent without leave and subect to discipline.

I suggest that you get with an employment lawyer in your state to help you deal with the difficult issue.

Good Luck!

WO

Thank you for responding so quickly. I was afraid of the "FMLA Forever" part. Our policy provides that leave must be concurrent with FMLA. I assume you are saying if she refuses to return the health care provider certificate, she is not protected therefore we can discipline.

In that her pattern is to exhaust vacation and sick leave and then maintain attendance until further accrual. What are your thoughts on denying vacation as it must be pre-approved?

I appreciate your discussion.

CuriousG

You have an interesting problem. So long as the employee has not accrued any paid time off, she is consistent in her attendance, however, once she earns an accrual, she begins to miss again? How convenient for her!

I agree that you should insist that the employee apply for FMLA and provide a Health Care Provider Certificate. If this employee is getting proper medical care for her condition, her attendance should not be a problem. In addition the fact that she is able to make herself come to work when she has no accrued time off available makes her medical claim seem weak at best.

If the lady does suffer from clinical depression, be prepared for the possibility that this also could be an ADA issue. Some sufferers of CD have a transitory condition, while others find it to be a permanent disability. Because the degress of CD are so varied, your employee may well suffer from the condition, but not actually to the degree that it impacts two or more major life functions (FMLA) or qualifies under ADA either.

The only way to know all this is to get that Health Care Provider's Certificate.

Gar

Just curious, but which 12-month period does your employer use? Calendar or "rolling" going backward 12 months?

Cat

If I understand this right, she uses all her available time until it is expired, then waits until she has accrued more time and starts over. How can her condition require her to be away from work as long as she has paid leave and then when she is out of leave she is O.K. to work until she has more leave?

WO

Hello All,

Sorry to be away so long. We use a rolling 12 month period.

This problem is rearing its head again. Yes, I can show a pattern of leave accrued and quickly utilized, also a Monday, Thursday pattern. We are now careful to ask the reason for each absence and get a variety of answers from horses to diarrhea. We are planning a second pre-disciplinary action meeting.