FMLA for Key Employee
Frenchie
116 Posts
One of our executive officers has not been well since his mother died this past June. He was her primary caregiver and missed a lot of work during her illness. I did not track the time he was off as he would often come to work, although later than usual, leave for a couple hours around noon and then leave for the day around 4:00 p.m. After her death he had a difficult time sleeping, and consequently getting to work before 11:00 a.m. He started to behave differently, and at times came to work smelling of alcohol. We addressed these issues with him and refered him to a counselor. The counselor determined he did not have a problem with alcohol, just wasn't thinking clearly due to stress. Attendance problems, along with performance problems continued at which time I began tracking. The first entry was 8/12. On 8/21 I met with him to discuss his attendance and performance. This seemed to turn things around. Then on 9/16 he began missing work due to neck and shoulder pain and lack of sleep. That turned into bronchitis, which has now turned into pleurosy (sp) or possibly fractured ribs. Nothing the doctor prescribes seems to work. He has been absent 13 days since 9/16. I'm not a doctor, but I can recognize depresssion. He has all the symtoms. Here is my problem. I think I should start to count these absences under FMLA. Can I do that even though he has not requested a leave? Also, if I bring up the subject of FMLA, can I run into an ADA problem because I perceive him as having a serious heath issue? Last, but not least, he is doing some work at home and corresponds with associates via phone and/or e-mail on a daily basis. Since he is exempt, can I even count these days as absences? He was in charge of HR before he was promoted so he knows all the ins and outs of employment law/regs. Any help would be greatly appreciated.
Comments
What you want to do is have the CEO or whoever supervises this executive officer(and maybe you -- assuming you weren't this guy's subordinate previously) talk to him about the absences and what he thinks he can do to meet expectations. During that discussion, perhaps the issue of intermittent or reduced FMLA or full FMLA leave can be discussed. Then, if eligible, and the criteria for intermittent leave is met, that could then be do-able. This could be along the lines of "we're concerned aobut your frequent absences and want to remind you about your right to take leave under FMLA." On the other hand, please note my comments below about his working at home.
You call the executive officer a "key employee." I assume you do mean the term as defined by FMLA. Remember, that key employees are also entitled to FMLA leave; they just aren't entitled to reinstatement rights provided by FMLA (although your company is perfectly free to grant them).
Regarding ADA, the criteria there is not a serious health condition but whether or not the emplyee has a medical condition that significantly impairs one or more major life activities (I trust you're not in California). And, yes, you may wind up having to at least look into reasonable accommodation under ADA. That's not to say he'd be entitled to reasonable accommodation under ADA at this point, but the burden MAY be on you to start the "interactive process", depending on what he says about his medical situation and what he needs to perform the essential duties of the job (including meeting acceptable attendance expectation if that is an expectation that is held for every employee).
Finally, if he is doing work at home then he isn't absent from work and there is no attendance problem in general. Remember as an exempt emplyee he is paid to do a job and deductions from salary are permitted under FLSA only when he is absent for a full day due to personal reasons or due to illness or injury that is subject to compensation under a sick leave policy, plan, or practice. If the exective officer's boss knows that he is doing work at home, then that is all more the reason to consider him at work.
But obviously the partial day's absences can be addressed through counselling and disciplinary action. If he falls under intermittent or reduced FMLA, you may dock the salary although you may NOT then hold those absences against him for disciplinary or performance reasons.