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Does FMLA have a mandatory interactive process like ADA? New Jersey

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  • Does FMLA have a mandatory interactive process like ADA? New Jersey

    Employee has recently been demonstrating attendance concerns (calling out more frequently, having to leave during the workday and return later, having to change a schedule or miss required meetings). Employee tells supervisor informally that her teenage child has a serious (mental) health condition that has been causing her to miss work (setting up appointments for intakes, taking her to crisis centers, dealing with her at home when having a psychiatric crisis). Supervisor tries to be flexible, sets up plan for employee to immediately notify supervisor whenever she leaves the office to run home, to make up time lost when she has to leave and return, and supervisor starts closely watching employee's accrued PTO. This started about 6-7 months ago.

    By now, employee's attendance has not improved, and she has not kept supervisor completely informed about when she leaves her office to run home to deal with teenager, and then return. We only find out about it afterward. Accrued PTO is still in the black, but decreasing toward zero.
    Supervisor wants to discipline the employee for the attendance problems (written warning), not following through on the plan to call supervisor BEFORE having to leave, and taking too much unscheduled time off.

    Checked with HR and this employee has never approached them about FMLA for caring for the teenage child's condition.

    I'm not sure if we are now required to have the "interactive" conversation, like you would with an ADA concern. The employee does not take off long discrete periods of time; it's just days off here & there, and hours/ partial days off here & there. Are we required to offer her intermittent FMLA? Can my supervisor go ahead and discipline this person without fear of being accused of "retaliation" for taking time off that's protected or supposed to be?

  • #2
    The employee has put your organization on notice by telling a supervisor of the issues. She does not have to go to HR.
    Once the supervisor knows about a potential FMLA situation, the organization should give the employee the proper forms to see if this situation is FMLA or not (by the physician's certificate).
    If there is a question, you can get a send for a 2nd opinion at the company's expense. If there is a disagreement between the 2 physicians, the company pays for a 3rd and that is binding.
    If its FMLA eligible someone needs to start tracking the time off toward the 12 weeks.


    There is no interactive process. If the physician says the employee will need 2 -3 days a month, then you are pretty much stuck with that. The employee is still required to abide by the company's normal notification process for absences. If you notice a pattern (ie the absences are always on Friday or Monday), then you have to do a little query with the physician as to why the condition calls for Mondays or Fridays off.

    If you discipline others for not calling in appropriately, then even tho this is FMLA, you can discipline for not giving appropriate notice. However, if you dont discipline others, you dont want to single this person out because it looks like retalitaion for taking FMLA.
    I find that the harder I work, the more luck I seem to have.
    Thomas Jefferson

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    • #3
      Thanks so much, Morgana.
      Yes we have a consistent track record of writing people up for poor attendance and for not giving appropriate notice to supervisors about taking time off.

      I think the discussion that happens along with the write-up will now involve sending her to HR to get FMLA paperwork.

      I suspect that a lot of the partial-day absences are the employee attending to the teenager's self-defined "crises" and not legitimate instances of providing care for the medical/psychiatric condition. Just because we work in the mental health field, some of us can see how this employee is responding to the teenager's demands and drama in a way that isn't so great for the teenager's recovery process and that negatively impacts the employee's work.

      I'm all for her taking time away to get the kid to appointments, assessments, and to run home if the child is suicidal are acutely psychotic and needing hospitalization. But one time the employee reportably had to run home because the daughter refused to go to her day program that day and was "flipping-out because she couldn't find her hair brush." Another time the employee ran home just because daughter was screaming and cursing at her on the phone about wanting to borrow money. I don't think any of the girl's treatment providers would fill out paperwork saying that this is an effective way to manage the mental illness. But the supervisor and I are "cursed" with having too much knowledge about the field.

      I do feel for this employee, and I see she's distressed, but sabotaging her job and potentially losing it will not help her nor her daughter.

      Thanks again.

      Comment


      • #4
        "I think the discussion that happens along with the write-up will now involve sending her to HR to get FMLA paperwork. "

        Not a good idea!

        The employer has the FIRST responsibility in the FMLA process unlike ADA. So the fact that the employer didn't take that responsibility means that if you writeup this employee and that time should have been protected under FMLA, you will be illegally retaliating by her doing so. And now 6-7 months later, it will be hard to know whether or not it should have been protected.

        Your best bet is to start the FMLA process TODAY. Once you get confirmation on whether the situation falls under FMLA, you can either discipline with the write up OR wipe the slate clean on previous absenses because you have some knowledge that some/most are due to this issue.

        Do NOT writeup prior or during the FMLA setup process.

        And I strongly suggest re-training all your managers on what to look for is important. I tell mine that they don't have to make any decisions, but rather just pass the information on to HR and we do all the interaction/paperwork.
        Last edited by hr for me; 02-09-2012, 07:52 AM.

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        • #5
          Originally posted by hr for me View Post
          "I think the discussion that happens along with the write-up will now involve sending her to HR to get FMLA paperwork. "

          Not a good idea!

          The employer has the FIRST responsibility in the FMLA process unlike ADA. So the fact that the employer didn't take that responsibility means that if you writeup this employee and that time should have been protected under FMLA, you will be illegally retaliating by her doing so. And now 6-7 months later, it will be hard to know whether or not it should have been protected.

          Your best bet is to start the FMLA process TODAY. Once you get confirmation on whether the situation falls under FMLA, you can either discipline with the write up OR wipe the slate clean on previous absenses because you have some knowledge that some/most are due to this issue.

          Do NOT writeup prior or during the FMLA setup process.

          And I strongly suggest re-training all your managers on what to look for is important. I tell mine that they don't have to make any decisions, but rather just pass the information on to HR and we do all the interaction/paperwork.
          Sorry, I was talking about writing her up for not communicating with the supervisor about when she had to leave the workplace, not about the anmount of time she took off.

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          • #6
            In that case, I would make sure I had written up other non-FMLA employees regarding the same issue so it doesn't look like you are writing her up for the absences. Or that it is a pretext for disciplining her for taking too much time off.

            I'd just advise that you be very very careful, because you already know that there is a possibility of FMLA issues on the table. You can hold her to the same standards as non-FMLA timeoff, but right now, it's a tight rope. Depending on policies and how they are communicated, she could almost claim because you didn't tell her about her FMLA rights that the manager also didn't tell her about the "plan" or she had a different understanding, etc. Hopefully someone has that documented (at the time rather than now) well so she couldn't.

            Also have to wonder why it was allowed to go on for 6-7 months. Sometimes by being generous and flexible, it can get the manager/employer in trouble. Again especially if it was never documented. I tell all my managers that if it isn't documented at the time, it didn't happen.

            So while you can write her up for not communicating, I'd still be very very careful.

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