Termination or FMLA?

Sunny

I apologize in advance for the length of this, but I want to give as many facts as possible. We are a unionized manufacturing facility and have an attendance policy under which (simply put) after 9 points (1/absence; ½ tardy or early leave) termination occurs. We do allow one 90-day probation – any further infractions during that time, or a future attainment of 9 points and we terminate.

We have a chronically late employee who has already been on probation and who has again reached 9 points through tardiness only. The ee has arthritis and has said he has trouble getting going in the morning. He claimed his tardiness and absences to be medically related so I gave him FMLA papers. His doctor confirmed chronic arthritis but did not say that this would make him unable to get to work on time. He did however answer the question about “Work intermittently or work on “less than full schedule” in the affirmative. So, my question is, would you terminate or would you count his lateness (from 1/10th of an hour to 1 hour) as intermittent FMLA? ADA does not come into it, in my opinion, because his condition does not limit any of his vital functions – he drives, works, just got married, etc.

I look forward to your input and thank you for your help.
Sunny

Balloonman

[font size="1" color="#FF0000"]LAST EDITED ON 03-25-04 AT 10:45AM (CST)[/font][br][br]Of course my views tend to be harsh. But he said he has a hard time getting started in the morning. Well why does he not go to bed a little earlier and get up a little sooner so he is not late? Not sure what time he has to be there.... but if you know you have issues in the am, get your butt up earlier.
The other issue I have, is if this individual truely felt this was FMLA covered, it should have been addressed long before he got to 9 points and put on probation. What has the union done? If you term and they grieve, I would point that out. Did they grieve the other discipline? Why not, and why only after termination?
My $0.02 worth!
DJ The Balloonman

Sunny

Balloonman:
I agree with you - and I want to terminate or let him transfer to the second shift. As far as reporting times, it doesn't matter. Whether it's 5:00 AM or 6:00 AM - he's late (usually just a little.) The Operations Director is worried about the FMLA.

Gillian3

The only person who really knows whether the medical condition creates difficulty for him getting to work or that he his using it as an excuse is the employee. The doctor has certified as to the medical condition and you can't prove that he is making excuses so how risky do you want to be? The union will probably file a grievance if you terminate and the potential lawsuit is there. You have to decide if the risk of a termination is more costly than the morale problems that other employees may have when they think someone is "getting by with it".

Crout

Wait a minute. The intermittent leave exists to facilitate continuing treatment by a health care professional for a serious illness...not to facilitate sleeping in and watching Good Morning America. For example, a cancer patient may need to take intermittent leave...let's say 5 hours a week...in order to receive treatments. Has the doctor presented any documentation to indicate that your employee comes to work late every morning because he's receiving treatments for his arthritis? If the EE is requesting an accommodation due to his medical condition that would fall under ADA, and you have already said that you don't consider this an ADA event. I would draw the line on this and let the EE know that unless he can produce adequate documentation to support the leave request you cannot allow the absence. Yeah, he might sue you, but so could I...all I need is a made-up story and the filing fee.

Sunny

Actually - his physician called me after the employee went to see him - he was puzzled as to exactly what the eee was after in terms of being excused for lateness. I told the doctor that he was often late - sometimes just by a little - and the doctor told me that he wasn't going to write up an excuse for that.

Crout

The physician called YOU and said that?!?! Man, there's no way I would allow this guy to circumvent the established practice. Follow your policy and terminate him if he exceeds the threshold and termination is what you would normally do under those circumstances.

Don D

I agree totally with Crout. I think he's right on target with the ADA/Accommodation comment. The guy is asking for an accommodation, not intermittent FMLA. FMLA does not suggest or require accomodations (and dragging in late is one). Only ADA has that fabulous feature. If you allow him to piddle around and drag-ass in late, next thing you'll have is him needing to extend breaks and lunch and leave just a little bit early. Nip-it Andy.






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System

You can't have it both ways. If you go the ADA route, then yes, you can accomodate the employee, so if he has trouble getting going in the morning, you shorten his schedule. If he still has trouble, shorten it some more. It shouldn't be on a sporadic basis though. If he continues, and additional decreases to the schedule are not feasible, then he is no longer able to fulfill the requirements of the job. Time for an exit interview.

Sunny

Sorry to be so long in getting back but I've been out of town. Thanks everyone for all your help. We ended up offering an accommodation (changed his starting time to 7:00) and letting him know that he was resposible for getting to work on time. He knows he is almost out the door and will most probably be on time.

Crout

DOH! Since you've offered an accomodation he is now protected under ADA. I think you've just jumped out of the frying pan and into the fire with this. Good luck.

Sunny

Thanks - this wasn't my call in the end.