Good Grief!

njjel

I was just told by a supervisor than an ee has been calling out sick for 3-5 days a week about once a month. She always brings in a doctor's note that states she has been under his care and may return to work. There is no diagnosis given. She tells the supervisor that it is allergies. Apparently this has been going on all year long and the supervisor didn't report it to HR. The supervisor now wants to know what we can do about her excessive absenteeism. This is a union environment. We could write her up and use progressive discipline or next time she is out more than 3 days would we be wise to issue the FMLA paperwork and see if the doctor certifies the condition?

Nrdgrrl

I wouldn't even wait until she is out 3 days. That is only one of the criteria that would apply to medical need for FML.

The very next time she is out, give her the FML paperwork but make sure she understands that it is not in force until completed and reviewed.

I doubt allergies would be covered, but as we are not dr.s it's best to leave it to them to determine.

NrdGrrl

LindaS

First of all I would counsel the supervisor regarding FMLA and how to notify HR when there is a possible FMLA qualifying condition. Second I would call the person into my office and go through the FMLA regulations with them and provide them with the necessary paperwork to have completed by the physician - they don't have to wait until their next appointment to get this completed. IF the condition qualifies you then have the paperwork all completed so that the next time there is an FMLA related absence, you don't have to scramble to get the paperwork completed. Since you are union, taking any disciplinary actions against the individual for these absences, IF they qualify, will create a grievance situation. What I have done in the past is to sit down with the individual and remove any "points" from their record (I usually go back 3 months) for any absences that qualify for FMLA leave (especially since you have medical certification).

njjel

It's my understanding that we can't go backwards and ask for certification of a previous illness after the ee has returned to work (she's been back to work over a week now). The supervisors were trained and trained again in fact on what to do when ee's are out. The ee never tells her why she is out and the doctor's note is just generic with no diagnosis. I'm thinking that the next time she is out, whether it be for 1 or 16 days I should issue her the FMLA paperwork and throw it in the doctor's lap!

LindaS

Current court cases regarding FMLA have shown that it is the employer's responsibilty to be aware of any potential FMLA conditions and act accordingly, as is the case with you now. In addition, while the FMLA does not allow an employer to "go back" and designate FMLA after 3 days have elapse, most employees would prefer that you do that especially since it is in their best interest. If, however, the employees doesn't WANT you to do that, you can't. As far as waiting until their next absence, this looks to be a chronic condition so the physician would be certifying the entire condition, not just the specific absences so it is best to get the paperwork done now, instead of waiting.

njjel

Sorry, I don't agree with going back. As we know it isn't permitted under the regs. There is no harm/no four with waiting til her next absence. So, in essence, I've answered my own question! What a great forum! :-)

LindaS

I was at a Labor Law Clinic recently and asked this very question to an attorney. His response was that if the EE wanted to allow an ER to go back and count past absences as FMLA, we could do that. We as the ER do not have the right to demand going back after the 3 business days. Let me give you a scenario (one that I have played out many times with several unions)...

An EE is absent numerous times and the supervisor, or whoever is responsible for recording absences, fails to notify the proper personnel of a potential FMLA situation. You, as the ER, continue giving the EE "points" (or whatever you call it) for these absences. You then find out that the absences should have qualified as FMLA and you "dropped the ball" in failing to notify the EE of the possibility of FMLA. I can guarantee that the union will require that the "points" be removed since it is your responsibility to designate FMLA and you should have known that there was a potential situation. If it gets to a point where you terminate based on the above, you will be reinstating the EE.

System

Just read this message and have been tearing apart my desk looking for notes from a conversation with our employment attorney a while back. Your comment re "dropping the ball" -- our attorney indicated that a recent case in which the company "dropped the ball and failed to send out notice to employee that situation was considered an FMLA event" was not crucial according to the court where the event (condition) is an obvious FMLA triggering event. Seen in this light, then, does one not consider looking back to the original events?

neveradull

[font size="1" color="#FF0000"]LAST EDITED ON 10-30-03 AT 12:57PM (CST)[/font][p]Do these absences occur every 28 days? If so you could be looking at several years (depending on her current age) of fmla. Never heard a woman call it allergies before.

njjel

Why is it you guys like to go there? You should know better by now. No, that is not the case.

Safety Witch

Just catching up on my forum reading so this may be a non-issue now. Another spin I see here that has not been mentioned is the supervisor not questioning the employee about their absence when he/she calls in. We try to train our supervisors to find out the cause of the absence. We especially want to know if an absence could be a non-reported workplace injury that could become a worker's comp claim. It is frustrating to go back and record a lost time on the OSHA log when early reporting (i.e. supervisor investigation) could have prevented or reduced the time loss days.

Safety W.