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mushroomHR · July 2004

We have an employee who is approved for intermittent FML. For the past two days the employee has called saying she is "sick"--no elaboration that this illness is related to her qualifying condition. Is it my responsibility to investigate further and ask this employee, when she returns to work, if her absences were related to her condition? When she went on intermittent FML I instructed her that when she calls off work due to her qualifying condition she must specify that she is taking off because of this condition or that she is requesting her "medical leave". How far must an employer delve into an employee's absence? This person is on the brink of losing her job due to her attendance and I don't want to get in the middle of a lawsuit. Thanks.

marc · July 2004

Our request for time off form has a box for the EE to check if they think it is FML related. The point is, that the EE has some responsibility in these scenarios just like the company does. If the EE does not follow through, they run afoul of the companies absence policies, which is just what happened in your case.

I don't think you will get a real black and white answer here, the test seems to be that the ER 'knew or should have known' that the condition could qualify for FML - and with that sort of a hazy standard to meet, I think it wise to err on the side of caution and followup with the EE to see if the absences qualify.

No opinion about the lawsuit exposure, there is an attorney out there for every case - whether or not there is a case is answered by the courts.

Down_the_Middle · July 2004

I agree with Marc, altho more strongly. The fact that you know the employee is ill with numerous absence days obligates you to explore this further to determine if FMLA is applicable. The courts have said that employees need not mention FMLA or anything close to this to put the employer on notice. If for no other reason, a call to inquire about the person's health will bring you the info you desire.

mushroomHR · July 2004

Thanks all. I think the term "babysitter" should be in all of our job descriptions. Don't know about you, but I'm tired of being one.

Down_the_Middle · July 2004

I prefer to think of it as trying to balance the interests of the employee and employer, but sometimes it's hard to distinguish...........

Don D · July 2004

[font size="1" color="#FF0000"]LAST EDITED ON 07-27-04 AT 09:07PM (CST)[/font][br][br]Down the Middle is a bit too employee friendly. An employee who is approved to take intermittent leave on a certain schedule is obligated to advise the employer when related absences are indeed claimed under the intermittent approval. An employee is not simply allowed to miss work and later claim FMLA, nor is the employer obligated to assume that absences must be related to the approval of intermittent leave. If you have an employee approved for a scheduled intermittent arrangement, you have a right to expect that any absence claimed thereunder will be announced as such. Intermittend leave, once scheduled and set forth, is not a blank check for the employee to blindside the employer or take unannounced leave.

(edit) And the recitation about the employee not having to specifically mention FMLA relates only to their initial situation which may give rise to FMLA, not once they are well educated and required to work with you in carrying out an intermittent arrangement that has been discussed and approved.

mushroomHR · July 2004

Thank you Don D. I always thought once the FML had been determined and approved it was the responsibility of the employeE to inform the employeR that their absence is for FML purposes. I didn't think the employer was responsible for following up with the employee. Therefore, if an employer has a point-based attendance policy, an employee who does not specify that their absence is FML related could be awarded points for missed work days. Would this be a correct interpretation of the situation?

Down_the_Middle · July 2004

mushroom HR:
Despite the practicality of Don D's comments, which have value, keep in mind that Courts are growing weary of employers deflecting responsibility to employees and then dropping the hammer. I'm involved in a legal case right now and am tired of the Judge admonishing us for things like: you reasonably knew what was happening; what does it take for you to be informed; you haven't made a reasonable enuf effort; etc....... While I believe we will succeed in our legal defense, the issue will boil down to the reasonableness of our efforts to contact the employee (who was on intermittent leave similar to your example) and obtain the necessary information b/4 concluding employee apathy and discharging her. Good luck with your decision.

marc · July 2004

Down the Middle, are you sure you are not in the 9th district? Your judge sounds like he/she is bucking for a transfer to the West.x}>

Don D · July 2004

I agree that it would not be in the employer's ultimate interest to rack up points and terminate an employee for such instances, knowing the possibility that the absences were FMLA related. If you have reason to think they might be, then it will eventually backfire on you to charge points and terminate. You will only wind up rehiring the individual with possible fines and a lot of investigatory red-tape. But, my point remains, that the employee can and must be held accountable for their end of the bargain. Expecting you to assume these things is unreasonable and can be a disciplinary event.

lnelson · July 2004

I agree that you should not charge the points for this instance and that you should confront the ee upon their return and inquire if the absences where FML related.

If they say, yes. Inform the ee that it is the ees responsibility to notify the ER of any FML related absences that are not previously scheduled AT THE TIME OF THE ABSENCE and NOT upon return.

Failure to do so will fall under your attendance point system.

JMO,
Lisa

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