We have a full-time employee who has had a history of attendance problems.She has a written warning for excessive absenteeism. She was caught sleeping at her desk last week. A few weeks ago, she informed her manager that she was suffering from migraines and that she needed to attend weekly Dr.'s appointments which would cause her to miss time from work (supported by a Dr.'s note). As a side note, she also has a written warning for job performance (not completing the work outlined in her job description). A follow-up counseling session is scheduled for July 25 to determine if her work performance has improved.
Yesterday she came to me and said that her Dr. has said she should reduce her work week to 30 hours due to the migraines for "about 2 months". She specifically asked for "leave". I informed her of her rights to partial FMLA (she meets the requrements) and completed the necessary paperwork, requesting that she have her Dr. complete the medical certification. She informed us yesterday afternoon that she wanted the leave to start yesterday, so she left early. She has called out sick today. I have informed her that until we receive the Dr.'s certification, she is not technically on FMLA leave.
Questions:
1. Is my last statement correct?

2. If we ask for a second opinion (we have suspicions that she may have a substance abuse issue based on several other incidents I haven't mentioned), is the independent Dr. only required to give a diagnosis, or can we ask him to complete the FMLA medical certification?

3. We want to continue to track her work progress per the warning we issued. Can we still have the counseling session on July 25, basing her progress on full-time duties from date of warning to July 15 (day she asked for leave and reduced her workweek), then base it on 3/4 duties (since she's working 3/4 time) from July 15- 25?

4. If her work isn't where it should be, can we then place her on probation (our policy allows this, and allows for termination once she has received the appropriate warnings--she is on her last one), and track her work based on 3/4 duties, then terminate her if she's not meeting those expectations, even if she's still on leave?

I have a feeling this isn't as complicated as it has become in my mind so any feedback would be appreciated.
Thank you

1. She has 15 days from the time you give her the forms to get the documentation from her doctor. Right now, I'd call the time FMLA provisionally, pending the certification form from the doctor.

2. Why would the second opinion doctor fill out the forms? That doctor should render an opinion as to whether or not FMLA is appropriate. If it contradicts what her doc says and she challenges you then you need to get a 3rd opinion which is binding from a doctor both of you agree upon. Incidentally treatment for substance abuse would also qualify under FMLA.

3. Yes you can still have the counselling session. Whether or not it makes sense to lower your standard for the time she is missing depends on a lot of factors. Nothing in FMLA requires you to automatically lower your standard or expect less, but if it is something like number of calls an hour for a customer service rep, then it only makes good sense to not include the 2 hours of FMLA with 0 calls in the decision.

4. Yes you can still terminate even if sheis still on leave so long as the leave isn't the reason for the termination. FMLA is not the get out of jail free card many employees think it to be. It doesn't mean you have to tolerate continued subpar work or can't terminate her for reasons unrelated to her medical condition and need for leave.


Personally, in this case I would be more likely to go the surveillance route before going the 2nd opinion route. A reduced schedule for migraines does not make sense and I am a migraine sufferer.

What happened with the sleeping at work? Is that why she was on a final warning?

First, I appreciate your response.
1. We are calling this 15 day period provisional FMLA.

2. Are you saying the Dr. needs to present a finding specifically of whether or not this employee qualifies for FMLA? I wasn't sure if the 2nd opinion is just a different Dr. giving a diagnosis, or if we could ask for a finding similar to that of an IME in a Worker's Comp case.

3. I want to modify the amount of work she is expected to do in her job dscription, mainly to protect ourselves and show we tried to accomodate her reduced workweek. We are going to "modify" (actually remove, but I don't want to state that) a couple of her duties and have her focus on a larger part of her job we can actually track by a percentage of completion. The percentage she was told to complete in the previous written warning will still need to be completed by the counseling session on 7/25.

4. As far as the sleeping, we put a memo in her file stating that she was found sleeping, we woke her up, and explained that in the future if she repeated the incident she would be sent home without pay for the remainder of the day.

Her final warning is actually for job performance; not meeting workload requirements. This is what we will be discussing with her on the 25th.

When you say to go the surveillance route, how does that typically work? I know what it means literally, but is it similar to how an insurance company might do it? Would we need to work with a professional on this?

Again, thanks so much for your time.

2. http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.307.htm Spells out how the second and third opinions work. The purpose isn't to determine whether or not the first doctor got the diagnosis correct, but to eastablish whether or not there is a serious health condition which requires leave from work. It is roughly similar to an IME in WC though it wouldn't be looking at causality or degree of permanent disability of course. It would be more along the lines of an IME to address AI/OD or RTW issues.

3. You can get yourself into trouble with ADA if you start removing essential functions of the job or treating her as unable to do certain tasks without any evidence she can not perform them medically. You also don't want to make it appear that you are retaliating against her for requesting leave by taking away responsibilities or modifying her job. Obviously if she normally locks up the place at night and handles certain closing tasks you are going to need to reassign those if she is leaving early. Otherwise, I would meet with the employee when she returns and work out together a plan for getting these tasks done or temporarily modifying them. I would be very clear that this is a temporary measure while she is taking leave only. Make sure that she is aware that the tasks at issue in the performance warning are still in effect and what you are expecting from her by July 25.

Personally, this is why I prefer not to set a specific date to review performance unless there is an obvious reason for it. If after 2 weeks it is clear that performance hasn't improved, then why drag it out? If you plan to meet weekly to review progress that is one thing but just telling an employee that they need to be at a certain level by a set date just opens up all kinds of issue like here.

4. OK you are nicer than me. I'd have made that the final warning. Not just told her not to do it again or she would get to go home early. I wouldn't go back and change anything about it now, but it is good that you documented it.

Surveillance would be similar to how the insurance company does it. I highly recommend you not go maverick on this. I might wait until I got the forms back from her doctor on the off chance the doctor either denies she needs FMLA or denies she needs 2 hours a day off everyday.

I'm really not that nice, I'm just dealing with a manager who is conflicted and skittish (the employee's).

For example, this same employee has called out sick the last two days. She has no sick time left, due to excessive call-outs in the past. I think we should give her a warning for attendance, (our policy states that we can) but the manager is completely against it; wants to wait for the July 25 counseling session.

I'm taking your advice and waiting on the second opinion until we get the med certification back.

I agree that we need to tread carefully in terms of modifying job duties--I am going to approach it scientifically, as there are some parts of her job that can be reduced by percentages of work completed--perhaps reducing those by 1/4?

I've been in HR for 10 years, but only at this company for 4 months--in my world, issues of job performance will be handled exactly as you said--track for a few weeks follwoing the warning, if it doesn't improve, we need to take action.

I would hold off on the attendance warning until you hear from the doctor regarding FMLA as the employee has already put you on notice that leave of some kind is required. You might do a dated memo to file that states she has been out these two days and is out of leave and if the time is not FMLA, termination is in order.

I don't know what the period of time is that you are looking at improved performance during but I think you are making this too complicated with trying to calculate the exact percentage of time she is spending at work versus the quantity of work. My very cynical guess is that this employee will not be back by next Friday and will probably need time well beyond that if she ever returns. This person knows they have the follow up. They know what is expected. They know they have not delivered. Why race back in time to be placed on probation or fired? I'd worry about how to quantify the work performed once the employee actually darkens your doorway. Document performance levels up until leave was requested/taken. If and when she returns, pick up where she left off.

This is also a good time to counsel and coach the manager as to why it is preferable to require the employee maintain improved performance rather than setting an arbitrary date and taking a snapshot. It might also be a good time to address not letting things get to this point in the first place where you are accepting poor performance and poor behavior and poor attendance and treating each one as an isolated separate offense.