Category Archives: Leave Issues

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?


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→

Abusing PTO Policies, Quirky Question # 60

Quirky Question # 60:

We are having trouble managing exempt employees’ paid time off (PTO).  Our current policy allows new employees to begin earning PTO right away, with the potential to earn up to 120 hours of PTO per calendar year.  PTO that is earned but not used is paid out or carried over at the end of each calendar year.

The problem we are having is that certain exempt employees know that they only need to work for fifteen minutes or so to be paid for an entire day.  These employees will spend fifteen minutes or so “working” while out of the office for personal reasons.  As a result, at the end of the year, these employees tend to receive a larger payout / carry over than others even though they are out of the office just as much (if not more) than their fellow exempt employees.  What can we do to curb this problem?

[Quirky Question No. 60 is another one of our West Coast questions, this one posed to the lawyers in our firm’s Anchorage, Alaska office.  Wendy Leukema, who has addressed other Quirky Questions posed to her and her colleagues in Anchorage provides her analysis below.  Note that Wendy’s analysis is not dependent on statutory or common law unique to Alaska; rather, she analyzes this inquiry from the perspective of the federal statute now causing such anguish to employers and such joy to the plaintiffs’ employment bar, the FLSA.] 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→

Faking Illness to Avoid Shift, Quirky Question # 47

Quirky Question # 47:

Our company uses rotating shifts, one of which starts at 11:00 p.m. and continues through 7:00 a.m.  Every employee is asked to work that shift, one day, every other week.  Every time a particular employee is asked to work that shift, she takes a day of FMLA leave, claiming that she has migraine headaches.  She jokes with her co-workers that she is going to get a migraine each time she is assigned to that shift, and no show up for work.  How should be respond? Answer→

Working Another Job While Taking “Leave,” Quirky Question # 40

Quirky Question # 40:

We have an employee who is claiming she has a serious health condition as a result of work-related stress and has given us a note from a nurse practitioner saying she should be off work for a month.  We don’t believe she has a serious medical condition, in part because we’ve heard that she is working part-time in a similar job.  She has refused to return to work.  Can we simply terminate her employment?

[Quirky Question # 40 is another one of our California Questions. As such, I have requested one of my California colleagues to provide the analysis. The analysis below was written by Karen Wentzel of our Palo Alto office. As I’ve described previously, Karen is a Stanford Law School grad, who has been practicing employment law for more than 20 years. Karen’s biography can be found at Her email address is: If you have any particularly unusual questions pertaining to California law, you can send them either to Karen or me.] Answer→