retro date

mmurnahan

I have an employee (12 year with company) who recevied her eval which indicated that her absentee rate was high, and was put on probation for it. It it well known that the employee had severe migranes. The Supervisor was aware of the times when she was absent regarding migranes. Although no one ever mentioned FMLA to her.

I became aware of the situation becuase the employee was upset regarding the eval. At that time (when I first became aware there was a problem) I sent her the standard FMLA forms with the standard turn around time of 15 days for the doc statement.

When the forms came in, the dates the employee put on the forms is retro back to some absences referred to in her eval, and prior to receiving the FMLA notice.

I understand that we can only retro 3 days from the date that we are made aware of the FMLA need. But her argument is that, the absences were related to her chronic diagnosis and she should not be punished, since she was not aware of her FMLA rights.

The supervisor (who is also the CEO/CFO) is adament about not retroing the FMLA leave and believes all absences (regardless of reason) will be counted against her for negative action.

Help.

marc

I do not think you can retro the FMLA.

Do your records indicate if there were three successive days of being off for Migraines? Did you have a doctors diagnosis. Migraines may qualify for FMLA, but they may not. Go through the details with repect to qualifying. You may find some guidance for future application.

Marc

Rockie

My opinion is, if these absences to which she was entitled to FMLA were used against her for any reason (bad performance appraisal, denial of a raise, written up for absences, etc.) and she was not aware that she was entitled to FMLA, then I believe you would have to retro this back or, at the very least, don't take negative action against her for the absences due to a qualifying event.

I would advise that you run this by an attorney. Denial of an individual's FMLA rights carries very stiff personal penalties.

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 09-15-03 AT 11:52AM (CST)[/font][p]Two questions to Marc:

1. Why do you ask if the migraines correspond with 3 consecutive days out?

2. When would migraines not qualify for FML?

marc

Hi SMace,

Sorry this took so long to get to. I got this information from an FMLA training a couple of years ago put on by a local labor lawyer. Here are some quotes and references.

For the three day rule:

A serious health condition is an illness, injury, impairment or physical or mental condition that involves (a) inpatient care in a hospital, hospice or residential medicare facility; or (b) conintuing treatment by a health care provider. FMLA section 2611(11).

then:

Continuing treatment by a health care provider means (a) a period of incapacity (e.g. inability to work) of more than three consecutive days and (i) treatment two or more times by a health care provider, or (ii) treatment by a health care provider on at least one occasion which results in a treatment regimen...etc,... (e) any period of absence to receive multiple treatments by a health care provider either for restorative surgery after an accident or other injury or condition that would likely result in a period of incapacity of more than three consecutive days in the absence of intervention.29 CFR section 825.114.

With respect to

As to when the migraines do not qualify, I have asked a couple of attorneys involved in the labor law area to try to narrow this down because Our work force includes several individuals who suffer from migraines. The attorneys have been reluctant to rule them in or out because many people assume they have migraines but have not gone through the formal steps above or whose migraines are not severe enough to meet the criteria.

Hope that answers your questions.

SMace

No problem with the delay. The reason I asked the question is in my experience migraines have always been classified as chronic conditions that do not have to meet the more that three day rule. Matter of fact, the situations we have are generally intermittent and there is not a thing we can do about it as long as the certification forms are filled out properly. We could always get a second opinion, but we haven't gone there yet.

AprilShowers

I asked a similar question earlier this morning about retroactive FMLA. I found this article on Ragsdale v. Wolverine World Wide, Inc. [url]http://www.binghammchale.com/Content/Publications/August LEPG newsletter.pdf[/url]

If that link doesn't work... do a "google" search with these key words:
designating fmla leave retoractive

and it should be the first link listed

good luck!

System

Does your company have PTO's? When our ee's are absent for less than the qualifying timeframe, our agency uses those. You can ask for medical certification for her condition and keep that in her medical file for future reference. I do not think you can go back and cover all the FMLA timeframe and I am sure that the ee did not exceed the 3-day requirement at any of the intervals, did she? No one should be punished on their evaluation for sickness. Several things contribute to migraines (stress, environment, food, noise). Now if the ee's work is being affected, some sort of counseling should have been done prior to the harsh review. Also, what does your policy and procedures say regarding FMLA, time off, evaluation and counseling issues? Sickness and work production are two entirely separate things. Had it been me, I would have appealed the review, even through a grievance process if necessary. Your CEO sounds like a "hard nut".