Change employment status?

DMK

We have an employee who was recently terminated for excessive absenteeism. She's claiming that we should have designated FMLA leave because she told the interviewer & supervisor she suffered w/migraine headaches. Some, but not all, of her absences were for migraines, however, she is essentially correct. I've instructed the supervisor to reinstate her and begin the leave process. Since she is unable to work her scheduled hours on a consistent basis, can we bring her back, designate intermittenet FMLA and change her status to part-time? Or must we wait until her FMLA leave time is exhausted? Our field is long-term care and must meet staff/resident ratio.

LindaS

I would not recommend changing her status to part-time at this point. She has the FMLA time by law and once that it exhausted you can look at making some more permanent changes.

One thing that you MAY want to look at is whether there is a similar job that she can do that her absences would not be so problemsome for you.

marc

[font size="1" color="#FF0000"]LAST EDITED ON 07-15-04 AT 03:07PM (CST)[/font][br][br]Has her doctor filled out the paper work that designates her headaches as FML qualified? If I remember correctly, migraines may be FML, but it is not a slam dunk, and you always have the option of a second opinion.

Have you written her up for the non-migraine absences?

Just as an additional point, we have a leave request form that includes a box to check if the EE thinks an absence will be FML. Your EE needs to be pro-active with you to give you a heads up if an illness could qualify for FML treatment.

lnelson

Would the ee have met the requirements for FMLA
1 yr and 1250 hrs?

Need alittle more info.

Lisa

Don D

"Our field is long-term care and must meet staff/resident ratio."

Although your state's requirement (ratio) does not trump federal FMLA statutes, it is not as simple as her later invoking FMLA privilege, after the fact. I'm not real clear on when she claimed what. If she was counseled and advised of the precarious balance of her attendance issues, all along, and finally when she reached termination, she then claimed that she was entitled to FMLA, that sounds mighty weak to me. As Marc said, she does (did) have obligations. It's not entirely up to the employer to 'crystal ball' when somebody ought to be on FMLA. Since you have already reinstated, I would make it real clear to her that she is being retained conditionally - conditioned on the outcome of her providing paperwork acceptable to you. I'd certainly hold her feet to the fire (figuratively).

Rockie

Migraines come in all degrees. A physician's statement would have to be forthcoming to verify that these are incapacitating. This should have been done when employee first discussed this matter with the supervisor so that it would have been on file. You are probably safer in reinstating her than not due to the personal liability issues I am sure would arise.

Make sure you separate her migraines from the other absences she had to make sure your decision to terminate was not legitimate.

You can transfer her to another position to better accomodate her schedule or your needs, but you cannot cut her pay or benefits.

If she is truly an attendance problem, this will surface again. Careful documentation as to when the illnesses occurred and the reason for each absence will help tremendously. Hope this one's feet to the fire!