Not Eligible for FMLA...

FunHRBanker

This situation was presented by someone in another HR group I belong to. I told her that I thought allowing the leave would set a precedent. If it were an upper level employee with ourstanding skills, she may allow it, but an entry level position I'd be leary of starting this. If the employee has exhausted her paid leave and doesn't qualify for FMLA, I think they're safe to term. What do you say?

Employee was hired 2/4/08 as a full time teller. She never said she had any problems that would effect her attendance.

On 2/14/08 she went to the doctor. Since then she has been excessively absent to go to the doctor. She had cancer that had been in remission and they thought it was back.

She requested a part time schedule that would allow for her to be off more but we did not have any part time positions for her and that is what I explained to her. I explained that she had no FMLA and that if her absences continued to be excessive, it would probably be better is she resigned and reapplied later, when she was able to work full time.

Now she has found that she will need surgery in June and will be off 3-4 weeks. I know that she is sick but is it right to allow her to be off with no time?

joannie

We have a non-fmla leave of absence policy to cover this I've e-mailed you a copy.

joannie

LindaS

I would examine whether the condition for which she needs surgery would qualify under ADA. If so, you may need to grant the time off. In addition, here in WI you have the WFEA that also addresses situations similar to ADA but the requirements for meeting a qualifying condition under the WFEA are much less stringent than the ADA.

I would recommend that you advise your colleague to engage in more discussion with this person to determine what, exactly, the condition is, how long it is expected to last, etc. before making any determination regarding termination.

Good luck!

FunHRBanker

I working a reduced schedule with 3+ weeks off for recovery considered a reasonable accomodation? There are no part-time positions available.

NaeNae55

It really depends upon the company's situation. Are there enough employees to cover for this one without serious hardship? What do you do if someone actually qualifies for FMLA and needs this type of leave? Remember, a court will say if you can manage it for others, you can manage it for this one. The real question here is whether or not this person really needs (and qualifies for) an accomodation, and if so, can you do it without unreasonable hardship?

Good luck!

Nae

FunHRBanker

Basically, if they can do it for someone eligble for FMLA, they should be able to do it for someone who doesn't qualify? Either way, they would need someone to fill the position.

Cancer treatment is covered under ADA if I'm understanding Linda correctly.

LindaS

Cancer treatment may, or may not, qualify under the ADA - it is difficult to say without having ALOT more information. In addition, as I stated in my initial post, WI also has the WFEA to contend with and that has a much lower set of standards to meet.

At this point I would engage in a detailed discussion with the EE regarding what the condition is, how long it is expected to last, how long they need off, what you have done in the past for other EEs in similar situations, etc. Make sure everything is in writing and verified through the treating physician. Then, before making any final decisions, discuss it with your labor attorney to be certain you have covered all the bases.

There have been numerous cases here in WI where an EE had some type of condition, not covered under ADA but was found to be covered under the WFEA and the employer ended up in hot water for their actions.

Be careful!!!

FunHRBanker

The employer is not in WI.

Thanks!!

Rockie

Cancer could possibly qualify for ADA. You need to engage in an interactive discussion with the employee as to whether she can perform the essential functions of the position with or without a reasonable accomodation. You are not obligated to "make" a position for the individual. This process needs to involve her physician. I usually send a copy of the job description outlining the essential functions and requirements of the position and ask the physician if the employee will be able to fulfill these responsibilities.

We have had individuals with cancer and you would never know it....they take their treatments and go on with their lives and live as normally as possible. Depending on the severity of the disease, treatments, surgery, etc. this may not apply to everyone.

In the case of ADA, this can be very tricky and I would get your labor counsel involved, especially if the physician states that she can perform the essential functions of the position and you don't feel she can.