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Refusing FMLA New York

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  • Refusing FMLA New York

    I have an employee who is consistently absent (13 days since the beginning of this year) due to chronic headaches and other health related issues.


    At one point I spoke to this person about taking FMLA, which was not an option due to FMLA being unpaid.

    The position this person holds in the organization is crucial to the business. We cannot have the constant absences or intermittent leaves due to the nature of the work.

    Would I be ok to terminate this person without any legal ramifications?

  • #2
    NOT if said person is otherwise eligible for and entitled to take FMLA rather he/she wants to or not makes no difference. If this employee is eligible for FMLA be it intermittent or full time until that employee has used the 12 weeks you must honor the leave without recourse or retaliation for doing so.

    See here for FMLA guidelines;

    http://www.dol.gov/esa/whd/fmla/
    Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

    Comment


    • #3
      refusing FMLA

      So can I mandate this person to take FMLA?

      Comment


      • #4
        You just designate the time as such if the reason qualifies.

        I would sit down with this person and explain that the attendance pattern is unacceptable. Explain FMLA and what they need to do to get the condition or conditions certified. General headaches are not covered but migraines can be. You also mention other health issues though it isn't clear whether these are serious health conditions or not. http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.114.htm

        Give them 15 days to get the certification forms completed by their doctor. If they refuse to do so, then FMLA doesn't apply. Ditto if the forms come back and the reasons for the absences do not meet the threshold for a serious health condition. http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.311.htm
        http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.312.htm
        If intermittent leave is required and this person is in a position where intermittent leave just isn't an option, you can transfer them to another position temporarily that can better accommodate this need. http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.204.htm
        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.

        Comment


        • #5
          You as the employer are responsible for designating FMLA any situation that appears to meet the criteria. The med certification will either support that it is FMLA eligible (in which case, the employee has job protection) or not FMLA eleigible (in which case you can discipline or term).
          I find that the harder I work, the more luck I seem to have.
          Thomas Jefferson

          Comment


          • #6
            refusing FMLA

            Thank You-

            I've asked this person to get the certifications completed by the PCP or Specialist. This was on 01/25/2008. I still have not received anything.

            The medical issues are Headaches, not certified yet as to whether they are severe migranes or not, and hypertension. From my understanding of FMLA, these two Dx's don't qualify under the provisions.

            I have had the talk with them about the attendance problem and how crucial they are to the business. Simulteneously, I conveyed to them that the company wants to work things out and ensure that all parties are satisfied with the resolution to this situation.

            Comment


            • #7
              Hypertension can qualify but it depends on whether or not it is necessary to miss work for it. It is rare for this to be necessary other than for doctor's appointments and medication changes. If you asked them to get it certified and they refused, then the time does not count as FMLA.
              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.

              Comment


              • #8
                refusing FMLA

                Thank You Everyone!

                Comment


                • #9
                  Headaches can be caused by even more serious medical conditions than a simple migraine.

                  Tumors, be they cancerous or benign, can often times cause debilitating headaches. There are many other very serious conditions that can contribute to headaches.

                  Be sure you get the doctors opinion for what is causing the headaches before you make a decision if the condition is serious enough to qualify for FMLA or not.

                  Sitting down and explaining the importance of this documentation to this employee may be what needs to happen here. Make sure the employee fully understands the repercussions, suspension termination whatever the case may be, to be expected in the absence of the documentation. Spell it out if necessary.
                  Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

                  Comment


                  • #10
                    I think the point is that the poster gave the employee the appropriate forms for the doctor to complete, and the employee has refused to return them. Since the 15 days granted by law has long since expired, the employer is within their rights to deny FMLA whatever the medical cause.
                    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


                    • #11
                      refusing FMLA

                      Thanks cbg-that's what I was looking for

                      Comment


                      • #12
                        Originally posted by hrmdnyc View Post
                        I have an employee who is consistently absent (13 days since the beginning of this year) due to chronic headaches and other health related issues.

                        At one point I spoke to this person about taking FMLA, which was not an option due to FMLA being unpaid.

                        The position this person holds in the organization is crucial to the business. We cannot have the constant absences or intermittent leaves due to the nature of the work.

                        Would I be ok to terminate this person without any legal ramifications?
                        Originally posted by cbg View Post
                        I think the point is that the poster gave the employee the appropriate forms for the doctor to complete, and the employee has refused to return them. Since the 15 days granted by law has long since expired, the employer is within their rights to deny FMLA whatever the medical cause.
                        I don't argue the point that the employer is within their rights to deny FMLA at this point. I would be in full agreement with that only IF the employer was clear to the employee about the way FMLA works and the purpose of the FMLA. I don't see anywhere in the posters writings that indicate he/she gave any paperwork/forms to the employee. It might be inferred when he/she says that certification was asked for. Who knows.

                        My first question would have to be IF the EE has been taking intermittent days off, 13 since the beginning of this year, why would having FMLA protection make them any more or less paid or unpaid than without FMLA?

                        I have to ask IF the employee was fully informed about how FMLA works on an intermittent basis and IF the employer may have made it sound like there was NO access to PTO benefits to dissuade the EE from taking FMLA. The OP is very suspicious of exactly that. Especially this part; We cannot have the constant absences or "intermittent leaves" due to the nature of the work. Read it again.

                        I didn't have to read between the lines to get the point that this company can not tolerate the constant absences or intermittent leaves, as it is clearly stated by the OP.

                        This statement kind of makes me wonder just how colorful the explanation of FMLA was when first presented to the employee. Was requesting the FMLA paperwork actually a specific directive or something mentioned in passing, tossing in the unpaid part for good measure?

                        hrmdnyc, did you fully explain the nature and purpose of FMLA to this employee? Was this done in any kind of formal manner or tossed over your shoulder when passing in the hall way?

                        The employees decision to NOT follow up on the FMLA paperwork may have well been based on the width, or lack thereof, of the brush used to paint the FMLA picture.

                        It makes no sense to me why any fully informed employee that is otherwise eligible for FMLA would risk loosing their job. Least of all over having the very simple and straight forward forms filled out by the doctor that is treating them. Especially if the employee has reason to believe that the headaches themselves or, the underlying issues causing them, qualify the individual to use FMLA.

                        I am inclined to believe there is a bit being left unsaid here that just might make a difference. Perhaps even what has already been said might make a difference as well.
                        Last edited by Kick Me; 04-03-2008, 09:20 AM.
                        Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

                        Comment


                        • #13
                          Originally posted by hrmdnyc View Post
                          I've asked this person to get the certifications completed by the PCP or Specialist. This was on 01/25/2008. I still have not received anything.
                          OP stated it was on 1/25/08 that the certification was given to the employee.
                          It makes no sense to me why any fully informed employee that is otherwise eligible for FMLA would risk loosing their job. Least of all over having the very simple and straight forward forms filled out by the doctor that is treating them. Especially if the employee has reason to believe that the headaches themselves or, the underlying issues causing them, qualify the individual to use FMLA.
                          This happens quite frequently when employees are not really experiencing any medical issues or those issues are not serious enough to warrent FMLA and they know it. They are trying to play the game to their best advantagte in gaining more time off.
                          Somedays you're the windshield and somedays you're the bug.

                          Comment


                          • #14
                            It makes no sense to me why any fully informed employee that is otherwise eligible for FMLA would risk loosing their job

                            It makes no sense to me either. But I have seen it happen.
                            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


                            • #15
                              refusing FMLA

                              Kick Me- On the day I had my conversation with this employee, back in Januaray, I explained their FMLA rights and printed out the FMLA Your Rights poster, gave them the url to look this up. I also handed hard copies of the certification forms and emailed them to the employee and their supervisor and asked for Read Receipts. I explained the purpose of the med certs, and the importance in this situation.

                              Since I posted this thread I have spoken to the person. At one point during the conversation they asked me if the company would consider laying them off and not contest the UI. Thus, I am inclined to believe they are trying to 'milk' the system here and get the utmost benefit out of any type of leave.

                              This person does 10% of their job at 210%, and the other 90% of their job at about 5%, but the 10% they do a great job at, is the most curcial to our business, and the employee knows this. But the constant absenteeism and excuses are taking a toll on the organization's morale.

                              I will be speaking to this person on Monday to find out whether they are going to consider FMLA(again I gave her the med cert forms and the explanation) or being laid off, which at this point the organization is ready to move forward with.

                              The ball is in their court and the company is trying to do everything right by them. The employee just wants to make sure their mortgage is paid and they have medical coverage.

                              I'm sympathetic, but this is a bit much!

                              Comment

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