FMLA

Pain

We operate a residential (ages 0-9) group home that requires 24 hour staffing. We have an employee that calls in sick constantly (usually 3-4 days at a time). He always has a doctor’s note with a follow up visit if he's out for more than 2 days. It appears that the doctor is giving him time off whenever he comes in. He received 2 weeks off because a 9-year-old client hit him on the arm, which became a workers comp injury. When I contacted the doctors office about the two weeks the nurse laughed when I give her the employee names and said that he is always whining about being sick or hurt. How can we terminate an employee who has a doctor’s note to back up every claim? Can we contribute his absenteeism, as FMLA because he was under a doctor’s care are we correct in doing so? This is burden on other staff that must cover his shift resulting in overtime and morale challenges. When he’s at work he is an average performer.

Terry

With all the time he has been out, does he qualify for FMLA? Has he worked the required hours and months to be eligible? If not, follow your absentism policy for guidance.

Gar

Sounds like this guy is trying to put you over a barrel. First, I'd designate the time off as FMLA to start the FMLA clock running. The sooner you get through that, the easier it will be to discipline (attendance) and perhaps terminate employment. Secondly, the workers comp part is of some concern because should you ultimately fire this guy he may file a bogus claim that you did so in retaliation for the workers comp. However, if his condition has cleared up, I wouldn't worry too much about workers comp. I'd cease calling his doctor for information. I believe the ADA forbids it. Sure, he isn't disabled per the ADA. But calling his doctor is grist for his mill (a bogus ADA charge) should he file because you wound up firing him. I'd consult with legal counsel to formulate a strategy for dealing with the employee.

Margaret Morford

Give him the paperwork to designate his absences going forward as FMLA and see if the doctor will certify that he has a serious health condition (if he has indeed met the employment elibibility requirement for FMLA as the person above pointed out). If the doctor will not certify (He may not because he has to come up with a serious diagnosis) then address the employee under your absentee policy until he gets himself fired.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
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