potential problem employee FMLA/ADA issues
Mikki H
45 Posts
We have a potential FMLA and ADA problem: We have an employee that will reach 1 yr next month. She has been reprimanded for excessive unscheduled absences (called in sick for various reasons) since her hire (1 verbal, 2 written). Job performance has also been discussed in these reprimands. The last written gave final warning that the next unscheduled absence may mean termination. The employee signed the warning, but then mentioned that she has been seeing a doctor and tests run, no specific illness diagnosed, but he might treat with mega-dose antibiotics that will make her sick for a few weeks and that she'll probably just take FMLA at that time. She was advised that she does not qualify until she has worked for 1 year. She then asked for temporary reduced hours or reassignment with her job back after. But we cannot make the job part time and we have no other openings available. She has not given us any specific "disability" but complains about chronic fatigue, but her absences were due to back pain, neck spasm, flu etc.
1. We are still concerned that she'll make an ADA claim. Of all of our employees, she is the only one that is bringing up these issues on her own and seems to already be "in the know" about things. It concerns us that she might be "setting us up" for something major.
2. We are concerned about FMLA also. Can a "treatment" like this, no specific diagnosis, be considered a FMLA event? I am sure that she could get her doctor to provide her with some type of note, but is it up to us to make the call if this qualifies?
We wish we would have just terminated her upon the 2 written notice, but we did not and now we are stuck waiting for another absence, in the meantime, she just might make the 1 year mark. I have asked permission to seek legal counsel, but wondered if there might be some additional thoughts from the experienced HR Hero users.
1. We are still concerned that she'll make an ADA claim. Of all of our employees, she is the only one that is bringing up these issues on her own and seems to already be "in the know" about things. It concerns us that she might be "setting us up" for something major.
2. We are concerned about FMLA also. Can a "treatment" like this, no specific diagnosis, be considered a FMLA event? I am sure that she could get her doctor to provide her with some type of note, but is it up to us to make the call if this qualifies?
We wish we would have just terminated her upon the 2 written notice, but we did not and now we are stuck waiting for another absence, in the meantime, she just might make the 1 year mark. I have asked permission to seek legal counsel, but wondered if there might be some additional thoughts from the experienced HR Hero users.
Comments
In terms of the ADA, consider her request for a reduced schedule as a request for a reasonable accommodation and determine whether there is a reasonable accommodation (not necessarily the one she asked for) that you can give her without incurring a substantial hardship. If so, implement it.
As far as the FMLA is concerned, you can feel confident to rely upon the opinon of her doctor in order to initially place her on FMLA once she qualifies. And, you can give her the paperwork now so that her doctor can give the medical certification. Remember, though, you always have the option of sending her for a second opinion, at your expense. If you truly doubt that she is suffering from a serious health condition and think that a second opinion may be worth the cost, do that. If the second opinion conflicts with the first, you can get a tie-breaker opinion that is binding (you get to pay for that, too). However, while all these opinions are going on, you must grant her conditional FMLA leave (once she reaches the year mark).
Note, that even though she does not yet qualify for the FMLA, since she has put you on notice of her intent to use the FMLA leave once she qualifies, if you take any retaliatory action towards her now you could be in big trouble. Your best course of action is to stay cool, follow all the FMLA procedures, and see what happens.
Anne H. Williams
Attorney Editor
Even though you didn't fire her, I think you'll be glad that you gave her written warnings before you know the details of her medical conditions. If it turns out that she does have an ADA disability (and she might not), it will help you prove your legitimate motives for further discipline or termination.
James Sokolowski
Senior Editor
M. Lee Smith Publishers
If she is asking for a reduced schedule and you give any employee a reduced scheduled based simply on the request, then do so here and not get into the disability issue.
However, if you would only reduce the work schedule based upon a medical problem such as a disability, I recommend you then start the ADA process and get the validating information to establish that she qualifies as disabled under ADA. Once you do that, you may find that there are other accommodations that are reasonable and would allow the employee to perform the essential duties of the job.
Most employee requests for reasonable accommodation will probably be made orally, initially. Of course, it may be needed for the employee and/or supervisor to follow up in writing, especially confirming the discussion between the two and what steps will be taken related to the request. The supervisor can develop a specific letter to the treating practitioner, requesting the information needed, and enclosing a written authorization from the employee (unless the superivsor is willng to let the employee deliver the request directly to the doctor).
Generally, the questions that should be asked of the treating practitioner are to describe the medical condition, what if any major life activiites it impairs (list the common ones) and in what way (to establlish signficance in comparison to the average person), whether the impairment if permanent, long term, or temporary/short term, whether the employee takes any medication or has any other mitigating measures that remove or reduce the degree of impairment (and if so, in what way -- or whether that measure in turn impacts a major life activity and in what way), and what suggestions does the doctor have to change the employee's job so that the employee can do the essential duties (you will probably need to include a job descritpion, and its best to incldue some description of the physical, mental and environmental demnads of the job, so the doctor can may some informed suggestions). This last part is only a time saver in that no determination has been made that the employee is disabled and entitled to reasonable accommodation yet. Getting that information from the doctor is just another reliable source -- employee, employer, Job Accommodation Network, particualr disability support groups, etc -- to help identify reasonable accommodations that may be effective. Of course, all of this inquiry depends on the nature of the disability and the degree of accommodation that needs to be implemented.
Let's not jump the gun. FMLA is down the road and you'll cross that bridge if and when you come to it. The very first thing you need to do is tackel the ADA issue. Obtain information from her doctor verifying there is a condition and if wether prevents her from performing the essential functions of her job. Based on your comments, I don't believe that has been done. Her saying she's being treated by a doctor doesn't make it so. Moreover, ADA cases should be reviewed and decided upon on a case-by-case basis. Get as much information as you can then decide. Remember, among other things, a disability is a physical or mental impairment that substantially limits one or more of the major life activities. At this stage you don't appear to know if such is the case. So, get that medical information.