Can we terminate before getting Med Cert?

deliberator

We have an attendance policy that is based on a point system. An employee was absent yesterday and today and this absence would put her over the limit to where she should be terminated. We have a slip from a doctor for her to be off yesterday and when she called in today, she told her supervisor that she has a bad urinary tract infection and if she's not better by Friday, her doctor may put her in the hospital (we have not seen an official doctor's slip that confirms this). Her supervisor told her to come in today to get FMLA papers but if her doctor doesn't determine that this is a qualifying event, she would be done.

So, she's been off yesterday and today. If she comes back tomorrow, can we terminate her because she's over the limit on the point system and at this point it does not appear to be a qualifying event or do we have to wait the 15 days or until we receive the med cert form from her doctor, whichever comes first? The reason we do not feel it would qualify is because it doesn't meet any of the criteria: she was not an inpatient, she was not absent more than 3 days, she's not pregnant, it's not a chronic condition (this is the first time she's had this), and there have been no multiple treatments.

We really don't want to wait for the Med Cert from her doctor for fear she'll do something else in the meantime which will protect her job. She's played just about every game with us and, if this is our window of opportunity, we don't want to let it pass.

System

Has the ee been counseled in writing about this problem? Is her job a critical position impacting the company's service? From what you say, she will hang herself. If it were me, I would immediately send a certified letter to her with a reminder of her points and her requirement to provide proper documentation from her doctor AND that if she didn't comply within (you set the timeframe), she would be terminated immediately. Also, you might want to address that from information that she has provided, To cover extra (I'm one of those who doesn't leave much to chance with difficult employees), I would attach a copy of the policy governing your absence protocol. Some may disagree, but I would rather err on the side of caution than risk a lawsuit. Documentation is key with this type of problem.

Check the U.S. DOL site at [url]http://www.dol.gov/dol/esa/public/regs/compliance/whd/whdfs28.htm[/url]

That site says that .... continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular activities) due to "a health condition (including treatment therfor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that ALSO includes: treatment two or more times by or under the supervision of a healrh care provider; or one treatment by a health care provider with a continuing regimen of treatment.... Good luck.

POPEYE

Just one thing to add: When setting the "time frame" for receiving physician certification, the REGS states that you must give them at least 15 days from the time they are notified in writing of their responsibility to do so.

Don D

Aside from the regs, which are well covered in the prior posts, It's my feeling that you should back off this itch 'to seize a window of opportunity'. If she's played every trick in the book, the one that remains is to sue you for FMLA violation. I suggest you NOT move to terminate her. Wait the allowed time, review what you have and act accordingly....whether it's job protection or termination.

Another point; The doctor DOES NOT determine qualifying events. He only fills out paperwork. YOU make that determination based on the regs. It's always a good idea to separate personality and the person from the FMLA process. When reviewing the paperwork and bouncing that against the regs and reaching decisions, don't even consider who the person is, what their prior record is or what others at the company (or you) 'think' or 'feel' about the situation. Simply walk into your FMLA vacuum chamber, close the door, review what you have and follow the law.

vmiller MO

[font size="1" color="#FF0000"]LAST EDITED ON 05-02-03 AT 12:10PM (CST)[/font][p]I again find myself in agreement with DonD. In addition, from a defense lawyer's point of view, I have been seeing juries be very sympathetic to plaintiff's in FMLA cases. DonD's approach is correct. The employee has a federal right to the leave. You have to determine if the absence is a serious health conditions. Follow all of your normal steps. Frankly, you are in the same situation as an employer who is dealing with a problem employee in a NLRB context. There is a presumption that any adverse action against the employee is tied to the employee's protected right. Therefore, you have to give the employee every opportunity to fail.

Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]

Rockie

Also agree with Don.

The certified letter is the safest route to go and then terminate after sufficient time has gone by and you have or have not received confirmation of serious illness.

The individual liability awards I have seen are tremendous, so I would definitely exercise caution when dealing with these issues.