FMLS in relation to STD, ADA and proposed new policy changes

hhaynal

Committee of members from HR, legal, and the company nurse are addressing and rehashing our return to work policy in relation to federal law and goals of company business. Mfg mgrs are pushing for an "out more than in" policy wherein if any employee is off work due to sickness, disability, etc. more than they report to work (within a rolling 12-month period), employee would be termed. I believe our current policies already provide for that when appropriately and consistently applied by the dept mgrs. There are hundreds of scenarios that the committee is testing as to the interrelationship with federal law and not violating same. However, where we are running into trouble is that, say, for example, we have a long term employee who is a top contributor. Just happens to have a run of bad luck one year with one goofy incident after another happening that results in his being off work more than he was in. Without violating federal laws, under the proposed policy, after 6 months and 1 day in a rolling 12 month period, we would offer the "dear John" letter. But it would be in the best interest in the company to retain this employee. However, on the other side of the coin, what if the employee was a relatively new employee and a tentative performer at best? Choice not hard here. But results in no consistentcy as handled on case-by-case basis. Also, here's another wrench to think about....committee is looking into having employees who have been out on disability and have returned to work, but subsequently call off periodically for sick day, to report to nurse for release to return to work. Stated more clearly -- employee out on disability for sprained back and is off work. Released from dr and returns to work with no restrictions. Several weeks later, calls off work for 1-3 days with excuse of sore back. We want to require employee to report to company nurse prior to reporting back to active duty. There would be a time limit on this requirement of 3 months from initial return to work. Any thoughts?

Hatchetman

There is no magic formula here.

Excessive absence issues are more than just numbers at a particular point of time. They get down to case by case considerations and include the impact the absences are having on the company and its operations as well as the employee's ovrall work history and attendance record.

Put the long term employee's current absence in context of the overall record. Length of serivce is a viable consideration in determining when "enough is enough." In your example, you say that a long term emplyee has a short period of poor attendace against an otherwise good record. That should tell you something. Put the current attendance problem in context of the overall record and attendance. A short term of excessive absences doesn't make the employee an absence problem ripe for discharge (that of course doesn't mean you can't express concern about the absences). The long term is probably more reflective of the employee's true picture than the short term issue of attendance ("a tiger doesn't change his stripes over night").

Beyond FMLA and ADA, the employer should be looking at that long term record in deciding what to do. At what point it changes from a long term, good employee who is going through a difficult period (in relation to his emplyment) to a problem employee of course is the $64 question. But with a 12-year employee, a period of less than one year, to me, is NOT the dividing line. I generaly use my only little principle. Excessive absences are an unusual number of absences over a significant period of time. So, a sixth month period is not a significant period of time for a long term employee of 10 or 15 years.

This is one of those cases where employee "loyalty" in remaining with the company has to be considered. Or, perhaps loyalty no longer is part of the consideration in today's management.

On the other hand, a new employee, as you note outside of ADA or FMLA, isn't going to get the benfit of a good long-term record. Essentially, the first thing noticeable about the employee the employer learns is that the employee is an absence problem employee. Thus, absences would play a bigger picture for the short-term employee than the long term (also more likely the percentage of absence will be higher with the short-termer than with the long-termer).

So, absent FMLA, ADA and other legal entitlements that may touch upon absence/attendance considerations, the long term employee may be and should be considered differently than the short term and should be given more leeway.

Just my opinion.

hhaynal

Appreciate the time and thought placed into your response. What is your opinion when considering potential inconsistency of handling such cases on a case-by-case analysis. The committee is leaning the direction of your thoughts as well, but we are concerned about the employee who is termed, takes it properly before the DOL, and then the company has to defend its policy.

Carey

You need wiggle room in your policy. Don't state that at XX absences an employee will be terminated. Our Absence from Workstation policy doesn't address how much you're absent at all (gives procedures and timeframes for calling in, etc.). Our Employee Discipline policy states that "the following violations can result in disciplinary action up to and including termination" and number 1 is "repeated absenteeism / tardiness or absences for three or more consecutive workdays without proper notification." So we really only have "repeated" to go by unless it's a no call/no show situation.

We evaluate on a case by case basis as described by AlumBoy. When dealing with a manager who wants to discipline or terminate for attendance, the first thing I want to know is how they have treated similar situations in the past and we go from there. I make sure we're being consistent with similarly situated employees (long term vs short term).