Out of FMLA
SLPaulson
21 Posts
I have a salaried exempt employee who has exhausted his FMLA. He has informed us he was diagnosed (unsolicited) as Bipolar. He works about one to two months and then he crashes and requires time-off. He is a Key Employee in the top 10% of salary for our company and his presences is vitally important as he is a Sales Representative. We have been anticipating starting a new team within this department with him as the lead Sales Person. However, his continued "crashes" has stymied our ability to set up this team. Also, he has become the least productive in gross sales for his department. In addition, we are now receiving complaints from customers of his inability to follow through on sales projects. We would like to use the "Refusing Reinstatement" based on the above factors, top 10%; and his absences cause grievous economic injury to our company. What do you all think? Do we have a leg to stand on if we refuse reinstatement based on the above?
Comments
- The more "peers" he has, the less likely he is a "key employee" - and you need to tell him he is if you think he is
- If he took off because he "crashed," how old is the documentation showing he can't measure up? How long has he been out? If the poor performance was immediately before he took leave, I would hesitate to terminate right now. You can't penalize someone for taking protected leave.
- Is he coming back any time soon, or has he indicated otherwise? If he can't come back, and you need to have someone in that job, use business necessity as a reason to terminate. That's what the FMLA is for: it gives a period of protected leave, and when that is over, the leave is no longer protected. Some employers are reluctant to terminate if an employee still has paid leave, but it really depends how much you need someone to be there and doing a job.
- If he does come back, evaluate his performance on return the same as you would anyone else's - but anticipate an ADA request.
This is one of those cases where the companies' enjoyment of this person as a member of their society might just be getting in the way of their more important benefits in life such as Social Security and disability benefits for life, what little there maybe left for the ee.
With out an equal player on the team some times the coach has to cut the lesser players and let stronger ees have a shot at the "gold rings". What is best for the company and the ee is what is important. Senior Leadership needs to step up and give some guidance on their position/s.
PORK
As I read your post, you have not already replaced this key employee all the way through the FML 12 weeks, so how "key" can he be? Your real concern here is based on performance, not on the fact that a "key employee" is not available to perform.
If you are going to terminate this EE, do so on that basis, not on some indirect FML key employee excuse.
You may also have an ADA isse brewing here - it might be wise to discuss this with Counsel.