Category Archives: Family and Medical Leave Act (FMLA)

Quirky Question # 190, Are Perfect Attendance Policies Compliant with the FMLA and ADA?

Question:

My company is a firm believer in rewarding good behavior as opposed to punishing bad behavior. Along those lines, we give bonuses to employees who maintain perfect attendance over the course of a year. For employees who do have absences, we apply a “no-fault” system that grants employees a set number of days that can be missed each year for whatever reason, so that our supervisors and HR staff do not waste time checking in on the reasons for every absence.

Of course, our employees periodically take different types of leave from work, including leave under the Family and Medical Leave Act and the Americans With Disabilities Act. An employee who recently took FMLA leave advised us that she does not think she should be disqualified from the perfect attendance bonus because she did have “perfect” attendance when she wasn’t forced to be out because of her health issue. Another employee who took some leave for a disability issue claims her missed days should not apply to her annual 15-day threshold, again because the leave was not by choice.

Neither employee’s request seems valid to me. How can an employee who misses work have perfect attendance? And what’s the point of a no-fault attendance policy if certain missed days count, while other do not? Answer→

Quirky Question # 170: Unconventional Medical Care and FMLA Coverage

Question:

We have a diverse workforce. While most of our employees utilize Western-style medicine for their medical needs, that is not uniformly true. Some employees rely upon non-traditional (at least not US traditions) medical treatment.

How far does the FMLA go with respect to these types of treatments? Recently, one of our employees sought FMLA coverage for faith-healing treatments. Although the employee’s belief that faith-healing might be genuine, do we have to cover it? Please, say it ain’t so. Answer→

Leave, Leave and More Leave, Quirky Question # 147

Quirky Question # 147:

We have an employee who has been with us for the past 10 years.  During the past five years of her employment, she has been absent the equivalent of five (5) years due to a variety of reasons.  She has taken leave to address issues with her family (including dissolution of her marriage), depression, surgeries, stress and anxiety, and caring for her son.  She has taken leave in lengthy contiguous periods, and intermittently.  She has exhausted every form of allowable leave, using up all her vacation days, all of her sick days, and all of the leave available to her under the Family and Medical Leave Act.  During this time, we have allowed her to take additional leave, contrary to our own leave policies.

Recently, this employee fainted while at work.  When the paramedics arrived to take her to the hospital, she told them that she lupus.  One of her co-workers was in the room when the employee disclosed this information, as was the employee’s manager.  When the employee returned to work two days later, she allegedly told her manager that she had “lupus and fibromyalgia,” although her manager does not recall her saying any such thing.

Both before and after this fainting incident, we have given this employee multiple disciplinary notices for her excessive absenteeism.  In the weeks following the fainting incident, the employee has continued to be excessively absent, and has not provided us with any evidence that her absences are related to lupus or another disability.

Yesterday, the employee met with her manager and presented a note from her physician.  This note stated that the employee had been under his care since just before the fainting incident, for neck, arm and back pain, which he believed was related to an on-the-job injury two years prior.  The physician also alluded to “a new diagnosis of a serious nature which may have been precipitated by the work related accident,” but provided no further information.  The physician went on to state that the employee would need “time off for Dr. visits and blood draws periodically,” and that she would “require special consideration for unpredictable fatigue and joint pain.”  The letter makes no mention of lupus or any other specific condition.

The employee’s manager wants to terminate her employment.  What should we do?

Answer→

Guest Article, New HR Competencies

LEGISLATIVE KNOWLEDGE AND ADVOCACY: THE NEW HR COMPETENCY
By Larry Bourgerie, MA-IR, SPHR

The need to understand the business and build business acumen is clear to most human resource professionals.  I have had a number of discussions with senior managers, and the one constant that I frequently hear is that HR professionals do not “think like a business person” and don’t think strategically.  The perception is that HR knows people but not business, specifically the business drivers that are important to senior management.

In the last decade, HR professionals have made great strides toward the goal of becoming strategic business partners in their organizations.   However, I believe most HR professionals fall short of their potential to have maximum impact on their organizations. One new crucial competency that would give HR more impact and credibility is a thorough understanding of, and involvement in, the legislative process. Answer→

Changes to Nation’s Employment Laws

Dorsey’s Analysis of Changes to the Nation’s Employment Laws

The advent of the Obama Administration is likely to result (and already has resulted) in sweeping changes to federal labor and employment laws and, accordingly, the relationship between employers and their employees. As we approach the 100th day of the new Administration, we have compiled a user-friendly summary guide to several key pieces of labor and employment legislation that are either pending before or likely to be revisited by the 111th Congress. Among other things, these laws underscore the Obama Administration’s stated commitments to strengthening anti-discrimination protections, repositioning the work/family balance, and reinvigorating unions. We will continue to monitor these and other legislative developments and will issue updates to ensure our clients stay ahead of the curve on impending changes. Answer→

FMLA Preemptive Strike, Quirky Question # 83

Quirky Question # 83:

We have an employee who has only been with our firm for about 11 months.  He recently requested FMLA leave.  Although we generally like the guy and think he does good work, we have had problems in the past once employees start exercising their rights under the FMLA.  Frankly, they just are not as dependable.  Especially in the current economy, where all of our employees need to pull their weight, an unreliable employee presents a serious problem.

We checked into the employee’s status.  Given that he has not been with us for one year, we were pleased to discover that he is not eligible for FMLA coverage.  Therefore, we plan to fire him before he becomes eligible and passes that 12-month threshold.  This may seem a bit cold but with the unemployment rate rising quickly, it’s an employer’s market with respect to hiring.  We’re confident we can find a comparably qualified employee reasonably quickly.  Any reason not to proceed as I just outlined? Answer→

“Penalizing” Employee for Using Leave, Quirky Question # 64

Quirky Question # 64:

We have a number of programs at our company that are designed to reward employee behaviors that are important to the success of our company.  For example, we provide a financial benefit to employees who have 100 percent attendance annually.  Another example is that we provide our employees a bonus based on a combination of factors, including quality of their work, contributions to their department, and commitment and loyalty to our firm.

We periodically have employees take different types of leave, such as leave under the FMLA, maternity/paternity leave, and leave under the Americans With Disabilities Act.  One of our employees who recently took FMLA leave advised us that she does not think she should be disqualified from 100 percent attendance bonus, and should not be penalized for the bonus we provide based on the criteria listed above.

Her position makes no sense to me.  Why would she qualify for a perfect attendance bonus if she missed work?  Why should she qualify for a bonus based on her contributions when other people are working year-round and contributing more than she is?  Am I missing something? Answer→

Rights Provided by Employee Handbook, Quirky Question # 54

Quirky Question # 54:

We have an employee who has missed a fair amount of work due to various surgeries.  As set forth in our handbook, we offer FMLA leave for employees who have worked 1250 hours in the preceding 12 months.  When we were informed that our employee would need to miss additional time due to some follow-up surgeries, we belatedly explored the issue with our attorneys.

Our lawyers advised us that although our employee had worked the requisite number of hours under the FMLA, he was not FMLA eligible because we don’t have enough employees in the office where he works or within 75 miles of his worksite.  Based on those facts, we informed our employee that he was not eligible for FMLA leave and told him that he could not take time off.  When he went forward with his surgery and took leave anyway, we terminated his employment.  He now has sued us under the FMLA and other legal theories, including “promissory estoppel.”  Given that he was not FMLA eligible, do we have anything to worry about? Answer→