Fibromyalgia

LindaS

We have a VERY long-term employee who suffers from Fibromyalgia. She has her "good" days and her "bad" days but it seems that her "bad" days have been occurring with more frequency than her "good" days. Her performance has fallen significantly and it's at the point that if she were another employee, we would have begun our progressive discipline process. I spoke with her recently (at her instigation) regarding her condition and explained FMLA to her but she has not gotten the paperwork back to me. In fact the only paperwork we have on file regarding this condition is from 2002 and the physician that completed it (it is only a one page letter) stated that this condition does not qualify for FMLA and would need to be handled on an incident-by-incident basis. We do not have any restrictions on file for her either. Any time she has taken off she has used vacation.

The current problem pertains to her performance. The medication she is prescribed for her pain is a narcotic and if she takes that, she cannot work on any machinery (we are a manufacturing facility) and if she doesn't take it, her performance significantly suffers.

I recently spoke with our president regarding this situation (he wants to help her as best we can) and suggested that we sit her down and address her performance. We are relatively certain that it is due to this condition so my suggestion is to have her visit her dr. and obtain updated documentation regarding what she can and cannot do and make decisions based on that. Without this information, I don't think there is anything else we can do other than start the discipline process which is something my boss is very reluctant to do.

Does this sound like the proper process or are there other suggestions regarding what could be done? This ee has stated that she intends to retire this summer although nothing is certain yet.

One last thing, we are unionized so we have a contract to deal with as well.

Thanks for any help!

Don D

No offense to the doctor; but, doctors are not the ones who decide whether or not a situation is or is not covered by FMLA. The company, in concert with the law, make the ultimate decision. I think just the opposite, however, and feel that fibromyalgia is indeed covered. If the condition has her periodically on narcotics that make performance impossible, she is meeting the definition of FMLA. The fact that she has a medical condition that is ongoing and has a treatment schedule in place and makes periodic visits.....all of this satisfies me. Perhaps she needs another physician. I would not dare treat this as a performance issue since she has revealed the condition to you and she feels this is the reason for her inability to perform some days. It would not be a bad idea to run this by your attorney as well. Good luck.

njjel

Right on Don D. Sounds like an FMLA qualifying instance to me.

jimlegal

Agree with Don. You may wish to explore the disability benefits with this particular employee. Having experience first hand a fibromyalgia matter, we were able to assist the employee with disability benefits and social security benefits. Fibromyalgia is a terrible.

LindaS

What were you able to do regarding social security? I agree that this qualifies as FMLA but the issue here is that the employee WANTS to work but her disease is getting worse and is making her unable to meet production requirements.

jimlegal

LindaS, we first worked with the employee to gain as much knowledge as we could about this condition. Then together with the employee we discussed the short term and long term possible effects, created a short term and long term plan. In our case the employee's condition deterioriated so bad that the employee could not work. We worked through the disability benefits. Then obtained Social Security information,providing it to the employee and ultimately assisted the employee (and the employees attorney) in receiving Social Security Disability. Yes, this was beyond the call, but performed on behalf of a good employee. All steps taken by us were first approved by our corporate attorney.