Executive Asst who misses too much work-help!
imjustme2227
1 Post
We have an Executive Assistant who misses way too much work. However, the majority of the absenses fall under FMLA. The president of the company is not being supported properly when she is absent so much. She is, though, protected by her FMLA, or the absences that do not fall under that guideline do not ever add up to be able to do anything within the attendance policy. She has the system figured out and the president is at his whit's end.
We want to move her to a different role. Thoughts? (Can of worms, right?)
Comments
An employee who has "figured out the system" isn't doing anything wrong. If the system isn't working right for you, change it.
Be aware that changing your attendance system because you do not like the way it interacts with FMLA may open you up to FMLA retaliation claims. Consider holding off on making any changes to your system until no employee has a valid certificate for FMLA leave in force. Use temporary help in the mean time.
You have the right to transfer her to another equivalent position....see regulations below:
825.204 of FMLA regulations:
(a) Transfer or reassignment . If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment for the employee, a family member, or a covered servicemember, including during a period of recovery from one's own serious health condition, a serious health condition of a spouse, parent, son, or daughter, or a serious injury or illness of a covered servicemember, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position...
(c) Equivalent pay and benefits . The alternative position must have equivalent pay and benefits. An alternative position for these purposes does not have to have equivalent duties. The employer may increase the pay and benefits of an existing alternative position, so as to make them equivalent to the pay and benefits of the employee's regular job...
(d) Employer limitations . An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. For example, a white collar employee may not be assigned to perform laborer's work; an employee working the day shift may not be reassigned to the graveyard shift; an employee working in the headquarters facility may not be reassigned to a branch a significant distance away from the employee's normal job location. Any such attempt on the part of the employer to make such a transfer will be held to be contrary to the prohibited acts of the FMLA.
(e) Reinstatement of employee . When an employee who is taking leave intermittently or on a reduced leave schedule and has been transferred to an alternative position no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he or she left when the leave commenced. An employee may not be required to take more leave than necessary to address the circumstance that precipitated the need for leave.
You have the right to transfer her to another equivalent position....see regulations below:
825.204 of FMLA regulations:
(a) Transfer or reassignment . If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment for the employee, a family member, or a covered servicemember, including during a period of recovery from one's own serious health condition, a serious health condition of a spouse, parent, son, or daughter, or a serious injury or illness of a covered servicemember, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position...
[/quote]
We don't have enough information to tell if paragraph (a) applies because the requirement in bold is not known.
[quote user="HRforME"]I agree that we don't have enough info to know for sure, but it is something that the OP should know about to see if it does fit his/her set of circumstances. It could be that her absences are not foreseeable. If she has been on FMLA for a while, however, I would suspect a pattern of foreseeable need has been established. Definitely a path the OP could pursue that may or may not work.[/quote]
A lot depends on the nature of the illness or injury. A person who goes to physical rehab has foreseeable leave needs. A person with irritable bowel syndrome or intense panic attacks may have need for leave that is not foreseeable.