FML out, Spvr doesn't want to term
HRCalico
582 Posts
Please allow me to preface by saying I am aware I have a bit too much piling up on me at the moment. I am trying to take a deep breath and handle things one at a time, but unfortunately I don't have the time right now to do a search on this like I should. If anyone would like to refer me to a previous post, I would really appreciate it.
Second preface - I got my first little bit of training yesterday on FMLA - before that, I have been kind of winging it. Unfortunately we were over schedule in the training so it was kind of zipped by.
I'll give most of the details, although I don't think all are relevant. I had an employee call in on 9/19 saying he had something in his eye and was seeking treatment for it. He called in every day that week, until 9/22, when his father called and left a message that the employee had hurt his back. That was the same week our production manager left without notice and a few other excuses that I could throw in there, but I didn't get FMLA paperwork sent until 10/5, at which point I told him his clock began ticking on 9/22 (I don't believe the eye injury would be considered a serious medical condition, but I digress).
I was unsure how to count the time because his department is working 50-55 hour weeks, so I went with 12 calendar weeks. That means it is up next Wednesday, the 14th, by my count. At my training yesterday, I got a bit of a sample letter that I can send him terminating him because he is out of time and inviting him to reapply when he is able.
When I returned today, I had a note from my president saying the employee's supervisor and the next level up supervisor (production manager) want to "work with (employee). So don't terminate."
I have had only two other employees use FMLA since we figured out we were eligible, and neither came even near their limit. I fear that by doing this we will set a precedent that you can get unlimited time off, and I definitely don't want that.
A few other random pieces of information - this employee was the subject of a post a little over a year ago, titled "Too sick to work, but not to sick to race" (not that it matters). Also, now that his 12 weeks is nearly up, he indicated his doctor will probably do surgery. Finally, I had the doc complete a WH-380 (DOL FMLA form) and it put an end date of 11/30/05. I have asked the employee to get me a new note ASAP and have not yet received it.
Can someone PLEASE help me? It's OK if the first suggestion is to remind me to take a deep breath. :>)
Second preface - I got my first little bit of training yesterday on FMLA - before that, I have been kind of winging it. Unfortunately we were over schedule in the training so it was kind of zipped by.
I'll give most of the details, although I don't think all are relevant. I had an employee call in on 9/19 saying he had something in his eye and was seeking treatment for it. He called in every day that week, until 9/22, when his father called and left a message that the employee had hurt his back. That was the same week our production manager left without notice and a few other excuses that I could throw in there, but I didn't get FMLA paperwork sent until 10/5, at which point I told him his clock began ticking on 9/22 (I don't believe the eye injury would be considered a serious medical condition, but I digress).
I was unsure how to count the time because his department is working 50-55 hour weeks, so I went with 12 calendar weeks. That means it is up next Wednesday, the 14th, by my count. At my training yesterday, I got a bit of a sample letter that I can send him terminating him because he is out of time and inviting him to reapply when he is able.
When I returned today, I had a note from my president saying the employee's supervisor and the next level up supervisor (production manager) want to "work with (employee). So don't terminate."
I have had only two other employees use FMLA since we figured out we were eligible, and neither came even near their limit. I fear that by doing this we will set a precedent that you can get unlimited time off, and I definitely don't want that.
A few other random pieces of information - this employee was the subject of a post a little over a year ago, titled "Too sick to work, but not to sick to race" (not that it matters). Also, now that his 12 weeks is nearly up, he indicated his doctor will probably do surgery. Finally, I had the doc complete a WH-380 (DOL FMLA form) and it put an end date of 11/30/05. I have asked the employee to get me a new note ASAP and have not yet received it.
Can someone PLEASE help me? It's OK if the first suggestion is to remind me to take a deep breath. :>)
Comments
So am I reading you both correctly that if we allow this employee X amount of time past the FMLA, then we'll have to allow any employee X amount of time? When the next one comes along that is a terrible performer and we don't want to keep them, we're stuck, right?
My final fear is that the doc will say he won't be able to work for four months. Then when four months comes and goes, it will extend another two, and then another two, and so on. And we'll wish we had cut him loose when we had the chance.
Is this common - to extend FMLA? I guess I've heard of other companies allowing a few months leave w/o pay, but this seems crazy.
Edit - my president is out, and I sat down with the two supervisors. Our policy says that we can grant additional leave with approval of the president and HR (I forgot that was there - never thought I'd have to USE it! 8-|), so I will create a form to make such a request. Apparently in the past, we have granted extended leaves to employees who were seriously ill (cancer, etc.) all pre-FMLA anyway. So I guess we do have that precident.
Is there any good FMLA training that anybody recommends? :-S
It is nothing new that management wants to "work" with the employee now but they will be beating your door down later to term him immediately because he is using up too much time (that they approved him to take!)! Our company has an unpaid personal leave policy that allows employees to have up to 30 calendar days after they have exhausted their FMLA time. If they need the additional time based on a recommendation (that we get in writing) from their doctor then we do grant the personal leave automatically. If they do not produce a doctor's note to indicate the time is needed for medical reasons then it is treated purely as a request for personal time and at the management's discretion to approve. It does not sound like your company has such a policy (yet!) so I would recommend that you send him a letter stating that since he has exhausted his available FMLA time (get that in writing to him!)you are provisionally granting him a specific period of time (ie 2 weeks, 4 weeks from date of letter). He must communicate with you by the end of that time period what his further intentions are regarding his return to work and that you will review it at that time to determine if you can accommodate his further absence (if he is asking for more time off). You need to state that if he does not communicate his intentions with you and he does not return to work within this time, he will be terminated. Reason for termination is exhaustion of FMLA as well as all other leave time available to him. By doing this, you have met the provisions of the guidelines by (a)telling him he is out of FMLA time, (b)that you (managment) are making an accommodation for him and (c) that further accepted absence will have to be determined and (d) what the consequences could be if he fails to notify you. This keeps the absence from being open ended and never ending which is where management starts getting mad about it later. It also shows that you were willing to make an accommodation up front giving him some time to get it together and get back to work. It also prevents him from coming back to work now and expecting more time later because you only provisionally gave it to him now, not open ended for later. Your right about taking the deep breath, especially when management gets involved in FMLA law which they do not understand the ramification their bad decisions (good intentions) can cause later. Good Luck!
That way, you can protect yourself from the problem child ee who cannot meet the standards you set, but still allow it for those you want to work with.
I have created a form to request an extension of unpaid leave, and have tried to incorporate the suggestions. One question, though - marc, can you define "in good standing?" :>) That sounds like it's pretty open . . . I would guess the obvious - no disciplinary action in X amount of time, but even that seems questionable.
Thanks again for the responses.
Didn't hear from him. He didn't come in yesterday (payday) to pay his insurance premium, as he's been instructed to do. He has 6 minutes to get here with his completed request to extend paperwork. Don't think he's going to make it.
I talked to the production manager this AM, who said after I return from vacation (going to San Antonion next week to watch LarryC's Michigan team probably whoop up on my Huskers in the Alamo Bowl, but I digress again) we'll talk again and most likely terminate.
Merry Christmas, all!
Edit: Update #2 - With all of the involved members of management back in the office today, we met and decided to terminate. When I called the employee to let him know the letter would be coming, he of course insisted he didn't receive the above mentioned form (note to self - if you think you maybe should send it certified return receipt, follow your instincts!). I did discover that he'd paid his insurance through next pay period (administrative mix-up), so we're keeping him on insurance through January. His surgery is tomorrow. With the term letter, of course I sent the COBRA paperwork.
He was pissed by the end of the conversation. Do these ever go well?