Just another Month

bamahr

We had an employee who was on FMLA - (By-pass)he was due to come back to work on the 8th of November. He called and said he had a Doctor's appointment on the 17th and he would then be released. We told him no problem. He comes in on the 17th and says he needs another month. The Site Manager told him he would call me. I told him we cannot hold his position any longer, the is not a prescidence we want to set. His leave was already at 13 1/2 weeks. I told him we need to tell him we cannot keep his job. The Manager is suppose to call and tell him we would not be able to keep his job open and I would follow with a letter.

PROBLEM: The Manager did not call - he is told for the first time by letter he does not have a job. My letter stated when he was released to call me and we would explore employment openings. We have aplogized for the way it was handled but the decision remains. The "Powers that Be" - seemed to think this was my fault. I was responsible for the letter - the manager failed to make the call. Needless to say he has called a lot and is really mad. Anything I might do to help ease this or let it go?

LindaS

As a general recommendation, I would not rely on someone else to give this sort of information. This is a delicate situation and should be handled appropriately. That being said, if your decision has the support of upper management or past practice, I really would "let it go".

bamahr

The upper management wanted the manager to tell him. I have never met the man in person and they thought the manager should do it. I told upper management that my lesson learned is I should have made the call and not relied on some else. Thanks!

bamahr

Generally I am in the room - but the Manager actually states the employee has been terminated. I then can inform of ex-employee of benefits. There are also times when I have had to intervene and conclude the meeting. There are cases like this when you have a Manager that is a known procrastinator that it would have been best for me to handle the termination from start to finish.

POPEYE

This is just another example of why HR does not need to be the one to do terminations period. Advise, and especially in this case, yes, but not the actual act.

I know there will be some HR types that feel they want to be "in control" and handle all terminations. I personally believe by doing so, it would make the other parts of the position such as counseling, training and just plain listening more difficult to perform because of having the label "terminator".

Don D

I may be an H.R. type, but I don't just 'want to be in control' in this type of situation. What I do want and what I insist on is ensuring that 'it' be done correctly and thoroughly. This is why I always preach that matters involving the intricate administration of any facet of personnel law should be handled entirely by Human Resources, not delegated to any other level. The only part of this I might have a supervisor do is to tell the supervisor when he speaks to John, to tell John to call me directly. The investigator or the jury will only see that the process was bungled and they will read that as mistreatment of the individual and misapplication of the Act. The best way to wrap the package and defend it is to handle it all in H.R. in cases like this. My other preaching involves being sure that FMLA notifications are in writing sent by certified or registered U.S. Mail. Those little green receipt cards can save your bacon. x:-)

bamahr

FMLA notification sent with little green card and returned with signature on card and Leave Form. Bungle - that is a great way to put it. What angers me the most is I did my part of the process as directed to me. When he didn't do his - they lay the blame on me. You should have waited to send the letter... How long? Until his insurance had two days left and he was told it would terminate in 2 days and COBRA is $340.00 monthly? At no point did anyone say to the Manager - you should have called. I take my part of the blame - I should have known better.

LindaS

I agree with Don. For me it's not an issue of being "in control" but rather to make sure things are done properly and that things aren't said that shouldn't be. I know of a former employer that had a female terminated for performance and after the HR person left, the supervisor of the department apologized to the individual, stated that they (the supervisor) did not agree with the termination and offered to be a personal reference for the ex-employee. That company has now been notified that an age discrimination complaint has been filed against them (this occurred AFTER I left the company).

mrsbowden

I had a quick question about this. Eventhough his FMLA expired if you were to require him to provide a medical certification stating when he could return and he did and it state another month...wouldn't you be looking a lawsuit? OR b/c FMLA has expired reguardless of the employees condition we have the right to fire and that is that?

I am just not real clear here, b/c we have an ee who will soon expire her FMLA (birth of a child) and from what I hear she will be doing this same thing.

So if her FMLA has expired and she says her docotr says she can't work another few weeks are we looking at trouble if we terminate anyway.

My only guess here would be (did we make an effort to accomidate her needs) That if she is only asking for 2 days off we should probably grant them but a month or more may be pushing it? Is this correct?

Don D

Emotions aside, remember that ADA requires reasonable accommodation. FMLA does not. Persons whose FMLA entitlement expires, who do not fall under ADA protection, or possibly WComp protection if your state has that, may be terminated. Now, whether your company wants to do that or grant exceptions or offer accommodations, is entirely up to your company.

mrsbowden

Thanks Don D. This is out of my element so one more question, if you or anyone can help. I was told she had a "special needs baby" I am not exactly sure what that means and if I need to be looking into ADA. Any suggestions, comments guidence here?

marc

FML could be used to take care of a special needs baby, but if the FML has expired, you would not have to extend additional benefits. ADA is meant for the EE, not for his/her family.

If you have any special leave categories, such as a catasrophic leave policy or just a plain old leave of absence policy, you might look there for additional time. In our company, those types of leaves are purely at the Exec Dir's discretion.

If this is an EE you want to work with, you might make some schedule accomodations that allow some flexibility. A caution however, you may be setting precedents that would apply to other EEs needing accomodation for a variety of issues.

Just my opinions.

Don D

I'm squarely in Marc's corner on this one. ADA does not roll over to family members. But, she may again be eligible for FMLA upon the expiration of her one year rolling period under FMLA.

mrsbowden

Thanks guys once again for your great input. As of right now we are anticipating her wanting more time since the date of return to work she wrote on her request form would have made 14 weeks instead of 12 weeks. So I sent her a letter stating what her actual return to work date IS and I am expecting her to inform me she needs more time.

We do have non-medical FMLA leave and that is what I will suggest to the VP to use if she wants to grant this ee more leave.

THANKS GUYS and GALS x:)