Got to go Home My Knees Hurt

morrisg

I have an employee who has a ostoarthritis of the knees. This requires periodic treatment of various choosings by the doctor. The doctor has declared this a regiment of teatment that is continuous in nature. (I think he has the FMLA law in front of him when he writes his diagnosis)

This employee often says his knees hurt him and he cannot finish the shift and declares "FMLA". I have told the supervisor that if he says this to let him go, but require that he bring a note back from the doctor showing medical treatment was necessary. If he does not we do not count it as FMLA and he would receive an attendance point under our no fault attendance.

Each time he wants to leave he says his knees are bothering him. He's even called off saying his knees are bothering him.

I have no doubt he has a knee problem, so I do not want to go through the second medical doctor opinion.

This same doctor has said this does not affect him with major life activities i.e. not an ADA matter.

What is the view of others concerning the manner in which I am handling this?

LindaS

If you have approved him for intermittent leave under FMLA you cannot require a medical certification each time he misses work unless you do the same for all other employees who miss work due to injury or illness who do not have FMLA situations.

Unfortunately, based on the above information you have to grant him the leave if he states his medical condition requires him to miss work as long as his physician verifies the need for the intermittent leave.

Don D

I'm in agreement with Linda. You're likely violating the FMLA by making him jump through that hoop. The doctor might have had a copy of the FMLA in front of him, but, I'm wondering if you did. You can't do that. All you can do is keep up with the absences, tally them, build them into hour units and hope they reach 12 weeks and he still needs to mess around, then terminate him if he cannot perform the functions of the job, one of which is attendance at the job.

We'll hear from those with arthritis in the knee joints (I have it in one also) who will say the poor soul needs to have the flexibility to go home. Don't buy it.

szemcumo

I am one of the knee people! Had surgery, knee was painful but surgery was wonderful. No problems since. But I agree with Don, once the FML is gone it is gone. Let him use, it is certified, once it is used up than you have and attendance problem to deal with.

morrisg

Thanks for all of you that have commented. My primary probem with this is that the doctor has no treatment plan for this employee and that leaving at will where the doctor has specified no dates only opens the flood gates up for other employees in the plant to leave at will. A regiment of treatment, needs to have dates of treament included.

SMace

There are some situations where an employee can leave at will and there is nothing you can do about. Asthma flare ups for example. You don't schedule those and they do not have to seek medical treatment. They can go home and use their nebulizer to get it under control.

There are some situations that you can require a regimine of treatment to be adhered to. I don't see it in his case. Periocially his knee pain flares up to the point he cannot tolerate working. He goes home. His FMLA certifies this need and there isn't much you can do about it. Welcome to intermittent FMLA.

Gillian3

Not so. There may be an occasional employee that looks at this individual and would like the ability to take off like he does, however, there will be no open flood gates letting the whole work force out to play. If there were, you would have a conspiracy and you can deal with that. The posts have it correctly, you go along with what the doctor says, the same for everyone, when there is no medical reason to be off give him points or whatever, and when he is out of FMLA deal with that. It is speculation, and probably unfair to the rest of the employee group, to assume that all the others would jump on this bandwagon. I've got arthritis in my left pinky and it doesn't bend as well as it once did, but I can still pound on the keyboard.

pork1

If he does not we do not count
>it as FMLA and he would receive an attendance
>point under our no fault attendance.

I agree with the others you want to count every minute you can as FMLA. The moment he goes over 12 weeks in a year's time, it is time to call it quits. Look at your approval letter for the FMLA it should have laid this out that 12 weeks or 480 hours is the extent of the FMLA. How many hours have we the employer and the concerned ee used?

PORK

marc

It is my opinion that most of our EEs will not abuse the FML system. Sure, there are always a few that will prove me wrong, but for the most part, I think our EEs do not study the system and try to put on over on their Dr to help them document a medical condition just to get 12 weeks of FML. We run the leave banks concurrent with FML, but there is a point where they are only hurting themselves because the leave will be unpaid.

Just because Big Jim has an arthritic knee is no reason to think that Sally's migraines were thought up just to get intermittent FML.

To the extent you are convinced that something is not quite right, you can call for second and third opinions, require recertification monthly or upon evidence of a change in the situation, and generally keep the clock going and the paperwork tight.

Abusers will eventually find themselves looking for work elsewhere.

morrisg

Thanks to all of you for your comments and thoughts. I found the very conservative approach interesting.

James has told us the only reason he was doing this was to avoid points. Thus, in my view, and for that matter the FMLA where abuse is suspected and documented, the employer has the right to require additional proof. That is what we are doing in James' case, a note beyond the FMLA form to demonstrate he has a medical condition requiring a medical need.

By the way, for those of you who see the intermittent leave as no big deal…do you know how long it takes to use 480 hours?

The FMLA is so very easy to abuse. While most do use it for its intended purpose, the abusers have gutted ours as well as any other employer’s no fault attendance program.

I was glad to see the FMLA under review to limit the intermittent leave to at least 4 hours to create more accountability.

Thanks again to all for you thoughts. I think the debate is healthy.

SMace

Of course he is doing FMLA to avoid points. We have a no fault attendence policy and ee's use FMLA to avoid points often. It doesn't mean they are abusing it, as long as they are correctly certified. You cannot require the extra notes. I hope you do not get audited.

Don D

Morris: I don't think anyone has indicated 'that intermittent FMLA is no big deal'. Of course it's a big deal. It's tough to get a grip on and manager, mainly because of what you are experiencing; it's perceived as a ticket to ride and often is just that.

The only conditions under which an employer can have intermittent FMLA recertified are:

1) The employee requests an extension of leave.
2) Circumstances described by the previous certification have changed significantly, regarding the duration, nature or complications of the illness.
3) The employer receives information that casts doubt upon the continuing validity of the certification.

I don't know which you might find applicable to your situation.

In my opinion, this intermittent leave should never have been approved in the first place if there was not specific clarity as to what was being requested by the employee, recommended by the physician AND granted by the employer.

morrisg

Yes, I think you are right. I should have never approved this in the first place or at least I should have given him provisional approval pending further information from the doctor. However, with these unpredictable flare-ups I'm not sure what I would expect the doctor to say that would have given us greater latitude to negate the abuse. This employee is using the system.

While we have had multiple FMLA request, they flow in everyday, this is one where I know abuse is occurring, the employee has told us he knows the system and will call off “anytime he wants and does not feel like coming into work.” That tends to drive my suspicion.

jmcaa

Hopefully your FMLA period is set up on the "rolling" method and not the yearly method!

morrisg

Absolutely, it's rolling. I've met very few who don't use this method.

AnneLa

I've gotten into the habit of sending a job description along with all FMLA paperwork to the employees treating physicians. I believe that this does make a difference in the way some MD's fill out the FMLA paperwork - restrictions and all.