Is Absence Protected as FMLA?
FLT
3 Posts
We have an employee who notified his supervisopr that he would be gone for a week to take care of the estate of his dying father. The supervisor informed him that he would not be paid for the absence, but in effect authorized it by accepting the employee's statement that he would be absent.
While absent, the employee called and left a voice mail for the supervisor, extending his absence.
Finally, the employee did not show up for work as anticipated and did not call in to say he would be further delayed.
We have terminated his employment as a voluntary termination because the employee did not show up for work or call in. Should we be concerned that the employee may yell FMLA and that terminating his employment for not showing up on only one day is too harsh? He has not yet showed today either.
While absent, the employee called and left a voice mail for the supervisor, extending his absence.
Finally, the employee did not show up for work as anticipated and did not call in to say he would be further delayed.
We have terminated his employment as a voluntary termination because the employee did not show up for work or call in. Should we be concerned that the employee may yell FMLA and that terminating his employment for not showing up on only one day is too harsh? He has not yet showed today either.
Comments
>request FMLA, and technically he would only be
>eligible if his dying father were in his home
>and he was providing care.
I have to respectfully disagree. It is not the EEs responsibility to "request" FMLA, rather it is the ERs responsibility to offer and the offer MUST be in writing explaining the rights and responsibilities therein. Also, there is nothing that I have ever seen in the REGS that stipulates that someone has to be in someone's "home" to be eligible for FMLA entitlement. If a physician certifies that having a son or daughter or father or mother sit next to a bedside in the hospital would be medically beneficial to the patient, them it would qualify.
I see nothing in the posting about the request and response being in writing. And, there is nothing in the posting about what company procedure is when an ee is a no-show. If there is a procedure in place, it should be followed. If there is no procedure, see what happens when the ee shows up and set up a procedure.
If he had exited the building in a rush, exclaiming "I've gotta go be with my dying dad, I'll be in touch, he's dying," that would put me on hold as a probable FMLA verbal notification and I would initiate the paperwork.
Even if this were FMLA, the FMLA regulations do NOT excuse an employee from contacting their ER to notify of their absence in accordance with the ER's policy so his failure to call in would result in a termination, as long as you are following your policies.
Prior to termination, I would try to contact the ee (phone, letter) and circumvent any potential litigation. Just a bit of preventative medicine...if you cover all your bases and terminate and he does sue...at least you can demonstrate that you gave him every opportunity.
I've had all kinds of weird requests for FMLA. Day care issues seems to be one of the worst.
I read some portions of the Act and it's regulations that just helping a qualified family member during times when health concerns call for it as a valid reason for FML. Driving a mom for chemotherapy counts for example. Why not driving a dying dad to the lawyers? Seems to me, a medical provider could easily write that this type of activity is a medical necessity.
Don's idea of tolling the decision until the paperwork comes back is probably the way to go. And give this EE a break. Find the Right thing to do without giving the company future headaches. Sometimes we have to temper our actions with messages from our hearts.
Just my opinion.
Again, speaking only for me, but assuming I might be speaking for others, I know that you will not find a lack of emotion in me or my daily behaviors. It is simply that emotion needs to be on a back, rather than front burner at all times in a pure HR role.
Nothing in the post implied to me that the employee would be driving the parent to a lawyer or standing at the bedside crafting a will or the other emotional possibilities you imagined. And the specific example you mention, "Driving a dad to the lawyers", as compared to "Driving a mom to chemotherapy", simply does not fall within the definitions in the Act. Peace.
I can see your point regarding what can be done to assist the employee through a difficult time but I also think there needs to be a certain amount of responsibility on the part of the employee. To say that it is okay for an employee to simply not report for work (the timeframe between when the EE did not report for work and the time the EE was terminated was not specified in the original post) and to be able to walk back in and say, "Hey guys, I'm back" without any repercussions in unacceptable.
I don't have any issues with granting an employee some time off to deal with this situation but it does NOT qualify as FMLA and the EE has a responsibility to maintain contact with the EE.
Not meaning to sound heartless but I get tired of always hearing that we, as employers, are the ones that are to be held responsible and not the EE.
Yes, the EE said there were estate issues to deal with and that does not, by itself, mean we should jump in and also assume that a dying man may or may not have medical issues associated with his last days. But I think one could easily go above and beyond, without opening the ER up to consistency issues, and give the EE the benefit of the doubt.
What would be wrong with sending the EE a certified letter containing FML paperwork and a note requesting contact. If contact is not received by (date certain) then a self termination would be assumed?