Abuse of FMLA

GLC · June 2004

We have an employee (exempt) who has had performance problems for years. It's been addressed, and she has been closed to termination. She is currently on intermittent FMLA for diabetes and migraine headaches. Her doctor completed all the paperwork. The problem is this. The program that this ee works in requires them to meet a 1000 per hour productivity limit. Since she has periods that she does not work, she never meets this. 99% of the other ee in the program do, but they are not on FMLA either. I feel that ee think that FMLA prevents them from being fired, even if their performance is not the greatest. Correct me if I'm wrong. Doesn't FMLA protect the ee in the sense that we cannot fire them because they took off for FMLA, but it does not state an employee does not have to meet productivity, despite FMLA. Can we ask her to work more time to make up for the FMLA days or hours she takes. Are we just to expect that this ee will not ever meet the 1000 hr. expectation because of FMLA? Sometimes don't you want to pull your hair out with some of these ee.

deniseE · June 2004

The upside to FMLA for an employer is that it can only go on for 12 weeks...once the ee is outside of that 12 weeks, you certainly can take action for sub-par performance. During the days she is at work, I imagine that you should hold her to the same standard, unless her doctor indicated light/reduced duty in some way.

Do you expect ee's on vacation for a week to either make up the time or meet the productivity before they go on vacation?

You may just have to wait this one out...the 12 weeks will expire and you can go from there...

GLC · June 2004

She never goes past the 12 weeks, not to mention that we have a rolling 12 weeks so it will start to accrue again anyway. The 1000 productivity hrs takes into account 4 weeks vacation, 10 holidays, and 5 sick days so all that is taken into account. Should we be pro-rating her productivity time for the year or expect her to make up any time missed, maybe on another day.

jmcaa · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-22-04 AT 03:12PM (CST)[/font][br][br]Do you require her to get a new medical certification every 30 days? I'd make her work for the FMLA. Is she following your attendance policy by calling in, etc.?

Check the FMLA regulations---can she be transferred to another position? Is she a key employee?

I would read through the regulations and follow them to the letter.

POPEYE · June 2004

Maybe I have missed something here but you keep referring to 1000 per hour productivity. If your EE is there for 6 hours then they should produce 6,000 or if there are there for a full 8 hours then 8,000. Why does her being away from work for FML for intermittent times affect the per/hour rate?

GLC · June 2004

This is a counseling center. The ee have to see so many clients per year and other service hours that total to 1000. The 1000 productivity policy is something internal and would be too dificult to explain here. Regardless, she is not meeting her production goals. Before I left today, her supervisor and I calculated her production hours and subtracted any FMLA hours taken and she still did not meet goal for the 3rd year in a row. This employee lets us know that we cannot use FMLA time against her. That's why I am asking can we hold her to the same standard or will we always have to pro-rate her hours because of FMLA time she takes or can we tell her she needs to make the time up some other time during the week/month, etc.

Hatchetman · June 2004

Remember, under intermittent FMLA, you may reassign the emplyee to an equialvent job with same pay and same level of duties, if letting her stay on the current job wold cause problems.

Don D · June 2004

No one seems to be answering your question, so I will. It is true, as she said, that 'you cannot use FMLA time against her'. But, it is also true that you can expect her to follow the normal productivity standards she would be expected to follow had it not been for FMLA. FMLA is not the crutch some employees see it as. It is not a safe haven for those who will not or cannot produce. If you have backed out the FMLA time and she is still not averaging your mandated production, she can be held to the same standards as others and disciplined accordingly. Another point is that if discipline is already in progress and then a person winds up on FMLA, that is not a safe haven either and the discipline can continue just as if FMLA had not occured. Assigning her to some other position is a possibility that you control. It cannot be mandated by her, nor does the act itself require it. Nor does FMLA have a mandatory reasonable accommodation factor, as does ADA.

Finally, 'retaliation' against an employee for their having taken FMLA is a violation of the act itself, but the other things I've mentioned above are not violations.

Abuse of FMLA

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