FMLA and Other Absences

Michelle

It seems as if FMLA is a real topic of interest within our field!

We have an employee that is out on intermittent FMLA due to his wife's serious health condition. This employee has a history of "riding the system".

Under his current leave desgination, he is incurring absences for things other than his wife's health condition, ie sick children, etc.

I know that absences related to his wife are protected, but what about everything else! I also know that we should treat an FMLA employee the same as we would an "active" employee, so are we allowed to start progressive discipline for his other absences?

Any help is appreciated.

vmiller MO

The easiest way to view FMLA is that the employee is at work, not absent from work. Therefore, the FMLA leave does not count as an absence from work.

If the employee is absent from work for reasons other than FMLA, then your absentee control program controls because the employee is absent from work. The trick is to make sure that you are treating the employee who is using FMLA leave the same as you treat other employees for those absences that are not FMLA. For example, if you allow employees to miss work because their car wouldn't start, then you should treat the employee who is using FMLA the same excuse.

In short, FMLA does not protect employees from being disciplined for absences that are not part of the FMLA.

Gillian

FMLA is very hard to administer and worse if you have state law on the same topic which is similar but with distinct differences which have to be accounted for. To answer your question I think that you have to answer others. Are the sick children also sick with something that qualifies for FMLA? Is the employee taking care of the children because the spouse can't because of their serious health condition? Do other employees receive disciplinary action when they stay home to take care of sick children? I think that disciplinary action is OK if there is equal treatment between this employee and others, but FMLA certainly complicates it. There isn't a good answer to this one.