Chronic pain

hrbanker

We have an employee who has a history of absence. She used to call in because of fights with her boyfriend. After a written warning, she began calling in with migraine headaches. The first was in March, second in July and then she has been off 7 days in the last six weeks with the same excuse. She brings a doctor's slip.

The manager wants to fire her for being undependable. Her last-minute call off sometimes causes us to miss courier service and we have to send an employee on a 150 mile round trip to deliver documents.

If she brings in medical certification of a chronic, recurring illness (which I'm assuming migraine would be), can we move her to a position that is less critical to the organization? I know we could move her if she needed intermittent leave...but does chronic illness requiring time off without notice qualify for intermittent leave?

stilldazed

We have a similar situation, an employee who intermittantly needs time off for migraines. We have been managing it through FMLA, our employee has been cooperative, and we have validated every absence with medical certification. The work tasks are much different in that there is no serious adverse effect (except that alternate staffing must be secured to cover the absence), and our employee works extra hours when allowed when her health is fine.

The "migraine" part of your question does not initiate FMLA protection. The initiating factor is whether the absence is "medically necessary." Again, we all know that advance notice on absence is desired but not required under FMLA. Confirm FMLA eligibility, extend FMLA protection if the employee satisfies eligibility criteria, and ask for medical statements. If the migraines are real and your employee is supportive of the process, you will get the statements. If you don't get statements, your employee is probably stringing you along; discipline the absences, and advise the employee with each absence that medical certification will be required to prevent reversal of the FMLA designation and exposure of the absence to disciplinary activity.

As an alternative to dealing with scheduling disruptions, FMLA does allow that employers "may assign employees temporarily to alternative positions with equivalent pay and bnefits that better accomodate such recurring periods of intermittent leave." That's a concept that sounds good, but it is difficult to manage if you don't have advance notice of the absence, and you probably won't if the diagnosis is migraines, episodal with multiple triggers and various degrees of severity.

A real issue, it sounds to me like, is not whether you can reassign the employee but for how long if the employee is eligible for FMLA protection. Maybe the reassignment should be a nonissue. Is the courier delivery a significant part of this employee's job? Maybe your organization needs a contingency plan. Let's face it, if the courier service is critical and a failure in the process triggers significant adverse impact, your organization needs a contingency, regardless of whether this employee is present or absent or working elsewhere.

The other real issue is whether you are letting the information you currently have about this employee's prior history cloud your thinking. Maybe I misread your post, but the implication I got from it is that your organization sees the employee's request for FMLA as a lame excuse and a continuation of a prior attendance problem, just under a different guise. It may be, but unless you know more than you shared in your post, you probably don't know that, and your organization cannot stand in the way of FMLA protection if the employee is eligible for it. A fair question might be if someone else without a known history of attendance were filling the position and was occasionally off or otherwise unavailable, would the courier issue still be the same, or would someone have been more proactive in arranging alternative coverage for the job task?

Good luck!

Don D

Wooooaaaaahhhhhhh! Notes from doctors like you have do not constitute FMLA approved absences from work. Where's your paperwork? Have you considered firing this employee?

stilldazed

Not sure if your question is for me or the original post. As for our situation, my first response was the same as yours, but medical statements we have are valid. It seems that our employee is truly incapacitated for 1 to 2 days at the time on a sporadic basis, including one recent episode of hospital confinement for 2 days. She bounces back quickly, returns to work, and is otherwise one of the silent 80% we never hear from until she has another episode. Managing her FMLA is more a matter of satisfying paperwork than anything else. Her absences for the last 12 month period don't come anywhere near a 12-week total, but just in case the flavor of her situation changes, we have paperwork in place supporting our attempts to manage FMLA for her.

We see some attempts at abuse in our organization, but they become evident with time. They are time consuming until they are exposed, and that is frustrating given that HR departments are plagued with more than enough work to do without FMLA. In fact, we just had one. We followed basically the same process, insisting on medical statements to prevent reversal of FMLA protection on absences as they occurred. The challenge got to be too great for the employee. Medical statements weren't always available. We tediously documented, and the employee gave up the facade and resigned to avoid discharge.

My point still is that FMLA lends itself to abuse by supervisory/management staff as well as subordinate employees. Whoever is filling the FMLA administration role should guard against bias. An easy way to do that is picture the situation with a different (favorite) employee. If there are any differences in the steps being taken, the administrator should back off for a second and look for objectivity.

I still think that the original poster's issue is not FMLA but rather a question of how critical the courier job task is to the organization. FMLA allows for job changes. The concept of FMLA requires advance notice, but advance notice is not always available. So the question then becomes one of how aggressively does an organization want to administer FMLA, in a way that is fair and consistent. Unfortunately, fair and consistent is often a function of good work performance (for the employee in question) vs. not so good work performance, which is often a function of bias. Let's face it, if the job task is that critical to the organization, there would be a back-up plan. If there is no back-up plan, it's probably not that critical. Organizations just don't place make-or-break job tasks with low level support staff. So, if there is no back-up plan, my hunch is that there is some unfairness creeping into the picture.

POPEYE

We followed basically the same process,
>insisting on medical statements to prevent
>reversal of FMLA protection on absences as they
>occurred. The challenge got to be too great for
>the employee. Medical statements weren't always
>available. We tediously documented, and the
>employee gave up the facade and resigned to
>avoid discharge.

Stilldazed - Can you explain this a little more? If you have the original medical certification and you have authorized leave, be it long term or intermittent, you may NOT ask for any other type of medical statement and may I ask how you "reverse" approval of entitlement.

stilldazed

Sure. In this case, the absences are episodic in nature, and the history has extended over months. We can ask for medical certification monthly. Because of the episodic nature, the employee doesn't usually have advance notice that a 'headache' will happen. (I'll use headache for the sake of argument since one of ours involves headaches.) We are required by FMLA to extend protection if the employee is eligible and appears to have a qualifying event, but the extension can be pending medical certification if we have doubts. For potential disciplinary reasons related to attendance, we immediately advise that certification may need to be updated or is required. If it's forthcoming, the FMLA is fine. If the employee used 'headache' as an excuse and medical certification is not available, we move on toward discipline.

The area of our business where we see the greatest potential abuse semi-skilled healthcare workers (CNAs). We employee close to 100. We operate on a 24/7 schedule and are accountable to a state regulatory agency to maintain specific staff to patient ratios on a daily basis (licensed facility). We get a lot of no call/no shows at the start of shifts, especially at night and on the weekends, which can be a real hardship for us if the absenteeism drops our staffing ratio below mandated levels--requires state reporting and self-imposed suspension on patient admissions. The part of our business that utilizes the CNAs is revenue generating (we are non profit), and we have a license to protect. The problem is absenteeism. A complicating factor is FMLA. We have tried to deal with the best way we know how and still protect some opportunities to discipline.

We are certainly all ears if there are other businesses facing similar circumstances. It is not easy for us.

Don D

My question is this: Are you sure you have thoroughly read and complied with FMLA regs regarding intermittent leave and the prohibition of asking for repeat certifications? I'm not clear on your scenario; but, an employer may not ask for an additional certification as long as the original is still within the time period stated in it, unless one of three qualifying conditions happens to be met.

stilldazed

Can't promise, but we're trying really hard. We have no overlapping medical certifications in the case I profiled. Each certification so far covers just the period of absence. We suggested something more long term from the employee, and so far we haven't seen it. A single statement for an ongoing issue would probably making trying to manage the process for this employee a little less labor intensive.

Overall, as a potential defense against inconsistent administration, given the nature of staffing in the healthcare industry, and given the state staffing regulations we must follow, the process we have landed on has evolved over a couple of years, is working fairly well, and keeps us as an employer closer to our comfort zone. Will it withstand a legal challenge? Not sure. Is it better than what we had going two years ago? No doubt about it. The process has given us an avenue to circumvent some other involuntary termination issues with no call/no show that were proving riskier and is helping us manage an attendance issue that had skyrocked out of control.

Don D

But, while addressing consistency and state staffing regulations, you have managed to violate federal law by requiring recertification multiple times. Good luck upon challenge.

hrbanker

The person in this position operates computer equipment and prepares documents that have to be sent on to a government office. There are strict timelines on when the documents must be there and we have a regular courier service pick it up.

There are three employees who can do this job, but due to extremely heavy work load and this employee's absence, we missed the courier.

The employee always has a doctor's return to work slip. Maybe I am letting the previous abuses color how I look at the current absences. I've asked the dept manager to schedule an extra person on busy days.

In the mean time, I'll get the medical certifications.

Thanks for your comments. It helps to bounce ideas around.

stilldazed

An article at the follow web address was released yesterday by e-circulation and is fitting to last week's disussion on intermittent FMLA leave for chronic conditions and medical certification. When I read it this morning, I thought it might be helpful to anyone who might still be interested in the topic:
[url]http://www.ahipubs.com/singleissue/planl11104.html[/url]