EE 12 weeks almost up...

lnelson

Many of you know of my migraine ee who is on FMLA his 12 weeks will be up next week and I just received his 30 day doctor note stating no change in condition. I have not heard from this ee for over 4 weeks. Do not know if he is coming back or not. Should I do anything, send anything?
So far he has met all of the requirements outlined with exception of the Fitness for Duty form. Give me your thoughts please.

Lisa

Don D

Not sure of your situation. Is it intermittent leave? You say you haven't heard from him for four weeks. Has he been out four weeks with a damned migraine? Where is he with the rolling calendar year? Have you gotten recertification? Has he complied fully with your demand for recert?

lnelson

Initially he was on intermittent leave then "apparently" put on temp disability by his doctor, I have no documentation on this but it was approved by us. His FMLA began in March he will have used all his allotted 480 hrs on June 15. His doctor has submitted a doctor note every 30 days since he went temp disability stating same thing no change in condition.

My next question is I just received a doctor note on June 3 with no change in condition but he is returning to work probably next week. What can I ask of him prior to returning? I know the fitness for duty but what else? Any accomodations? Does ADA become an issue?

basketballmom

Just a message to Don who questioned this employee being out 4 weeks with a "damned migraine". Obviously you do not suffer from this horrible illness. I do, and believe me when I say it is possible to have a migraine every day for weeks. It happens!! Just a word of advice - don't be too quick to cast judgement on a topic you might have limited knowledge on.

Don D

Basketmom: I suggest it is not possible to be out four weeks with a headache and not be able to contact the office at any time. That's totally unreasonable. An employee has obligations, as does an employer.

aspen29

We have a similar situation. An EE availed 12 weeks of FMLA from August 03 to November 03. (Our rolling calendar year is from 08/01 to 07/31 due to collective barging agreement). On 06/02/04, EE submitted a physician note along with temporary disability claim for 4 more weeks. Can we send a FMLA exhaust letter to EE? If so, what happens to temporary disability claim? Please advise.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 06-07-04 AT 07:35PM (CST)[/font][br][br]Contact him -- by phone call and/or letter. Talk to him about his FMLA expiring on x date and that he needs to return to work at that time if not sooner, with a release from his doctor allowing him to perform all of the duties of his job.

Have him call you before his before "x" date if there is any problem or other information that would prevent him from return to perform all of the duties of his job so that you cna discuss what happnes next.

IIf he does not return as expected nor call you to let you know of any problem, he will be subject to disciplinary action which could include his discharge.

If you call him first, confirm conversation in letter. Original certified mail, return receipt; copy sent regular first class mail.

If you send letter without talking to him, do the same procedure -- Original certified, return receipt; copy regular first class mail.

Keep affidavit proof of mailings.

The disability could reflect a long term medical condition that could fall under ADA. That's why you want to talk to him if he CAN'T return to work as expected. But until you know more about his medical condition if he can't return, you really can't say ADA is or isn't applicable.
A disability under ADA can either be permanent or long term. Long term isn't defined but about a year is common. So, one of the questions to ask him is how long he expects to be under this medical situation. You may still have to inquire of the doctor even if the employee says a few more months. Under ADA, a reasonable accommodation could be further leave than what FMLA provides to allow for recovery and the ability of the employee to return to perform the essential duties of the job with or without further reasonable accommodation, although if there other accommodations -- assuming he qualifies as an ADA-disabled employee -- you could do those instead.

lnelson

[font size="1" color="#FF0000"]LAST EDITED ON 06-09-04 AT 06:55PM (CST)[/font][br][br]Hatchetman -

I sent him a letter on 6-7-04 certified and just received a call from him. He is now asking if we can extend the leave to the beginning of July. I have informed him that his FMLA is up on June 15 and after that no longer guaranteed a position and that we do not want to set a precedent by offering more leave.

I also said that should he be able to return on June 16th the fitness for duty form needs to be filled out by his physician in order to return to work.

IF he does come back on June 16th his supervisor wants to have a performance improvement type plan for him due to his prior attendance which were unrelated to his illness. He had been disciplined prior to FMLA on non-medical issues and was still unable to comply.

What do y'all think? :-?

Don D

I would not do anything precedent setting with this employee. He sounds as if he's hell bent on manipulating your policies. If California requires accommodation for FMLA or has requirements that tack-on to FMLA, I'm not familiar with them. I would have to defer to someone in California in that case. I would be very cautious about disciplining in the midst of the FMLA denial though, unless, big unless, you have ongoing, good documentation of performance issues. You can't afford to have it appear that you're guilty of FMLA retaliation and it can easily rise to that appearance level.

lnelson

Thanks for the reply Don D. -
My only problem I am seeing is the POSSIBILITY of ADA becoming an issue although from what I have observed and others in his dept. it is not a life altering case of migraines. It may be a continuous health problem. Is it a disability if occurs occasionally? Would that fall into ADA?

I agree with the disciplining upon return but just wanted back up on my thoughts.

Lisa

Don D

I suppose so, if it's a condition, not of a temporary nature, that affects one or more major life activities. Hatchetman is the resident scholar on the subject.

Don D

Only in California. No further comment.