Doesn't want it...

Elizabetharess

We have an employee that was given FMLA papers by a Director. She told the Director that she did not want to take out FML for her absences and did not return the paperwork. The employee has been doing poorly on the job and has cut her time down considerably.
The Director just called and asked if she can force her to take FML.
Her mother has MS and she takes care of her and lives with her.
Do we need to get this in writing? She is close to being fired or suspended without pay until she is able to be more productive.

marc

It is the employers call, but with the information you provided, I think this falls into the "knew or should have known" area. Which means, to me, that she should have FML protection.

joannie

Agreed. We use 2 different forms for FMLA. One is the standard government Employer response to request for; the other is Employer Designated FMLA. If you are interested, post your e-mail address & I'll send it to you.

Elizabetharess

Please send it and Thank You!!! [email]eszczesny@flemingdevelopment.com[/email]

Irie

Without the employee returning something in writing, be it for the employee's serious health condition or the serious health condition of a family member, how do you know for a fact that a serious health condition exists?

We have an employee who has been calling off stating they are having a medical problem. However, without the doctor's certification they could be calling off and working another job, or sitting around watching TV and eating bon bons.

Is an employer supposed to take the word of the employee that a serious health condition exists? I'm confused. Thanks.

joannie

"Is an employer supposed to take the word of the
employee that a serious health condition exists?"

No, you can still require them to furnish the health care provider certification. If they fail to do so, you should be safe to proceed with any disciplinary action your normal attendance policy calls for.

LindaS

Agree with Joanie. I would send her a letter, certified, that informs her that failure to complete the requisite FMLA certification form will result in her absences being considered unexcused and any disciplinary action/termination that is a result of this failure will be follow through with. If she continues to refuse to complete the paperwork, follow your normal attendance policy and if termination is the result, follow through.

marc

One would think that following letter of the Act with respect to the paperwork, would protect the ER. Unfortunately, that is not always the case.

My very first FML training, it's been over 4 years ago now, was conducted by a West Coast attorney. I believe this fellow was trying to scare everyone in the class and build up his business. In any event, he presented a case where a long term EE (25+ years on the job) began experiencing attendance issues and quality of work issues. The company went through it's normal disciplinary process and eventually terminated the man.

Shortly thereafter, he was diagnozed with an illness that caused the lethargy and concentration problems he had been presenting. He had mentioned these problems in his disciplinary meeting.

The EE sued and eventually won. His pattern of conduct at work had been well established, he had always received excellent reviews, all of which was documented in his files. The courts held that the relatively sudden change in behavior was a red flag the company should have picked up on and the guy was awarded back pay, reinstated, etc.

Bad news, I no longer remember the case reference, so this example is diminished with it's absence. Nonetheless, this left a lasting impression on me. It eliminates the certainty that would ordinarily come with a rigid adherence to procedure.

If this kind of standard can be applied, it leaves us with the unenviable task of assessing risk in an uncertain world. We are used to that. So to minimize risk, I will call it FML until paperwork can tell me otherwise. I do not want to be diagnosing EEs - that is for the medical field. But I can tell, with reasonable certainty when an employee is far along in her pregnancy.

I start the FML clock whenever I can. We have a progressive discipline policy that is not rigid with respect to attendance and tardiness, so there are few incentives for an EE to protect their job with the FML shield, they would rather bank the leave than use it.