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  • Derogatory health/emotional instability comments in annual performance review?

    Can a manager specifically mention absences covered under FMLA/STD due to health issues and/or emotional balance perceptions (on his part) in a performance evaluation? The company also provides limited sick time coverage in a rolling year. (i.e. no more than 4 occurrences OR 8 days). STD was only used for isolated illness(es). No union. Company has approx. 50,000 employees.

    The comment about health issues was about availability "due to health which seem to occur during inopportune times". The evaluation did not note "exclusion of time off covered under FMLA/STD" nor was there any deviation from the company sick policy (as noted above). All "sick time" away from work was covered under FMLA/STD or company policy sick leave for the current years' performance rating period.

    The "emotional balance" comment was my manager's perception of some sort of "emotional issue"; which came as a total surprise since there wasn't anything specifically identified in the review or at any other time during the course of years working with this company. Only a negative comment about a potential mental/emotional health issue (i.e. being emotionally unstable) that came out of left field.

    Would the comments stand-alone as discrimination against me? The comments the manager noted are part of my permanent employee file. I am not being demoted but I am not being promoted. Even with the comments discussed here within, I received a "meets expectations" annual performance review.

    Do you think a review of this particular evaluation (based upon the information I provided), by a different company hiring manager/supervisor with promotional opportunities could possibly see myself as a potential employee "risk" as these comments suggest health issues (that were covered and within company policy) and mental issues ("emotional balance")?

    I am considering counsel...
    3
    Yes, you probably have a discrimination case!
    33.33%
    1
    No, stop being an "emotional" drama queen!
    66.67%
    2
    Probably wouldn't hurt to get professional review/advise.
    0.00%
    0
    Blonde Phoenix

  • #2
    STD absences are NOT protected by law unless they are ALSO covered by FMLA. Any non-FMLA absences can legally be held against you EVEN IF they are covered by STD.

    My read on the wording is that the manager is questioning the legitimacy of some of the absences. That can be a valid concern.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Agreed. STD (or LTD) by itself is nothing. At best (based on what you have said) you are talking about a possible FMLA violation, and then only if the reading of the paperwork would convince an arm's length third party that a FMLA violation has occured. The law does not specifically talk about reviews, so it is not like a "review" law is somehow in play. At most (based on what you have said) you are talking about a weark FMLA claim. If we flip the situation, the supervisor should be looking seriously at all absences that are not FMLA or ADA or such. I have written a ton of reviews over the years and attendance is indeed something that is always looked at. The other poential problem is that words on a page per se are likely not the potential action, it is rather an actual job action (termination, suspension, raises denied) that can potentially be claimed as actionable. Point in fact, line managers are frequently not FMLA expeorts and they do not necessarily know the exact classification of all absences. In many companies, HR formally vets the actual job actions to make sure no such violations occur. I can say Bob was absent xx times and late yy times during the review period, and that can be a statement of fact that breaks no actual laws. If I try to punish someone for FMLA or ADA protected absences, then and only then is a line crossed.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

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      • #4
        Originally posted by cbg View Post
        STD absences are NOT protected by law unless they are ALSO covered by FMLA. Any non-FMLA absences can legally be held against you EVEN IF they are covered by STD.

        My read on the wording is that the manager is questioning the legitimacy of some of the absences. That can be a valid concern.

        All STD absences WERE covered by FMLA. Company policy.
        Blonde Phoenix

        Comment


        • #5
          Depending upon the condition and reason for the absences, it may be perfectly legitimate to comment on their timing. If an employee makes all of their doctor's appointments on the day before as holiday or company deadline, it is worth mentioning. Once in a blue moon, there is no way around it. Very often there is. FMLA requires the employer to allow the employee to take off but it also requires the employee to schedule time off so as to least disrupt the employer's operations. If that is not happening, yes, it is a valid comment for a review.

          While it is unwise to speculate on an employee's mental health diagnosis, if there are behaviors or attitudes that are a problem, that too is worth mentioning. Even having a mental health diagnosis does not exempt you from your employer's expectations. If you are unclear what was meant by the comment, ask.

          It is extremely rare for an employee review to be the basis for any kind of claim. It is not an employment action in and of itself.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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          • #6
            What is and is not covered by FMLA is a matter of Federal law, not company policy.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              You didn't furnish the name of your state as you are requested to do when posting. We'll assume you work in NY (as per your IP address) unless you tell us different.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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