FMLA and Alcohol Treatment

Caroliso

My EE has been out for 4 weeks on FMLA to treat alcoholism. This began with an absence of one day, followed by an e-mail to his supervisor saying he was struggling with his drinking again (we have been through this before) and that he was looking for a residency program. The way this has unfolded has raised some questions that I hope this forum can answer. Our policy is very loosey-goosey and I will need to tighten it up based on what I have learned with this episode.

1. If someone checks into a residency program right after they tell us, how do we handle following up on paperwork and medical certification? I assume residency rehab programs are of the no-contact variety, but don’t know for sure. We let it (medical certification in advance) slide because it happened so fast and then we didn't hear from him and assumed he was in such a program.

2.. Our EE, four weeks later, is ready to return to work, and wants to e-mail his colleagues in the department and explain what went on. Our organization is one where folks in general are very open with their colleagues about their goings-on, much more than I would like, and I do what I can (discourage broadcast e-mails about people’s illnesses, even if it is well-meant) but in general that isn’t a battle I try to wage. However, in this case it doesn’t sound like a good idea to me for a variety of reasons. Should I as HR manager, or should his supervisor (to whom he expressed this intention) discourage him from disclosing is situation? I think his motivation is he is worred that his absence has been a burden, and he feels he at least owes them an explanation.

Irie

My experience has been that when an employee goes into rehab I give them the medical certification immediately and it is completed by a medical professional at the rehab facility. We also have the employee sign an agreement form that allows us to obtain information from the rehab facility as to the progress of the employee. If they don't finish the program/follow-up then they are terminated.

As to number 2. I would discourage the employee from broadcasting his business to everyone in the department via your e-mail system. But if they insist on telling other employees then let them do it in person rather than by e-mail.

HRQ

1. Agree. If the employee was able to contact you, he was able to provide you with at least the main phone number of where he'll be staying. If he has someone else at home, you could mail it to the home address, but you are relying on that person to get it to the employee. That, however, is not your problem. You send it to the most current address available.

2. Agree.

davids

I agree with others, but want to raise a side issue of allowing employees to use the employer's email system for personal messages. Once you allow one employee to send broadcast messages of a personal message, you will have difficulty stopping others. When the content gets political, religious or offensive, you will have a situation you really don't want to deal with. I recommend a policy prohibiting such use of the email system.

Caroliso

Thanks, David. The EE was really targeting his department of five or six people, not the entire company.

This probably belongs in a new thread, but we have not had to issue such a policy so far in the organization. Self-policing and peer pressure has worked well to keep "junk," by which I mean personal broadcasts whether or not they are of an inflammatory nature, out of people's e-mail boxes. We also have a Pubic e-mail group that serves as the place to send non-work messages (requests for recommendations on plumbers, that sort of thing.) and it has not gotten out of hand.

People are far more concerned about the Spam that manages to elude our anti-spam programs.

Caroliso

One more question:

The EE was granted a part-time schedule earlier this year to attend classes. There was no documentation indicating a review of this arrangement mid-year, although the supervisor seems to recall the words "we'll see how it goes." Now given the work set-back that resulted from the absence, the department supervisor is not inclined to continue this schedule and wants the employee to return full time. Are there any problems with that? I think that FMLA guarantees return to the same job, and if the new schedule were fewer hours I think that might cause me to hesitate, but are more hours the same situation?

System

>One more question:
>
>The EE was granted a part-time schedule earlier this year to attend classes.
>There was no documentation indicating a review of this arrangement mid-year,
>although the supervisor seems to recall the words "we'll see how it goes."
>Now given the work set-back that resulted from the absence, the department
>supervisor is not inclined to continue this schedule and wants the employee to
>return full time. Are there any problems with that? I think that FMLA
>guarantees return to the same job, and if the new schedule were fewer hours I
>think that might cause me to hesitate, but are more hours the same situation?

You are correct that employees who return from FMLA must be returned to the same or equivalent position, and according to the FMLA regs, this means that the position to which they return must be "virtually identical" in terms of pay, benefits and working conditions, including privileges, prerequisites and status. Employees ordinarily are entitled to return to the same shift or the same or an equivalent work schedule.

If this were a situation where the employee's schedule would have changed regardless of the FMLA, then you would be okay, but the problem I see with your situation is that the supervisor wants to increase the employee's work hours as a direct result of the FMLA absence. The fact that you're increasing work hours doesn't change the analysis - depending on a person's situation, an increase in work hours can be as much a "punishment" as a decrease in hours. In addition, one could argue that the part-time schedule in order to attend classes is a privilege to which the employee is entitled upon return from leave. You could always ask the employee if he's willing to put in extra hours, but *requiring* him to do so based on the FMLA leave could be risky.

Kimberly A. Klimczuk, Esq.

SKOLER, ABBOTT & PRESSER, P.C.
Editors of the Massachusetts Employment Law Letter
(413) 737-4753 Email: [email]kklimczuk@skoler-abbott.com[/email]

This message is not intended as legal advice and does not establish an attorney-client relationship. Readers of this email are encouraged to contact their labor and employment counsel for further information.

Caroliso

Thanks, Kimberly. To be safe I've contacted the manager. She had already spoken with the employee who'd said he wasn't sure he wanted to take classes, but we will make sure if he doesn't he is clear that it's his choice.