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Tuesday, April 28, 2009

FMLA for a poor performer

I have an exempt employee on intermittant FLMA, due to a medical illness which has been confirmed by a doctor. The employee has not used all of the 12 weeks as of yet, but is getting there.

The employee is very sporadic in when he/she will work, some days the employee is fine and others not. She will work a week here and off one here and there. The doctor has cleared her to work 6 hours a day, but these six hours the work ethic is very poor, no past documentation. (I am the new HR Superintendent.)

To help you understand the situation a little better, this is a camp job, very remote, my exempt employees work 4 days on 3 off, they stay in camp 3 nights, normally work a 11-12 hour day. My worry is if I attempt to document poor work performance while the employee is under medical care, I am opening the door for the EEOC or ADA or NANA. I have offered reasonable accommodation by allowing a six hour work day. Again this is a camp job so working six hours leaves 18 hours in the employee dorm. I want to state that I cannot accommodate her 6 hours or better yet start documenting poor performance and terminate. But again I feel I am opening the door for the EEOC, ADA and NANA.

I want to say, off the bat, that I have no idea what NANA is. I hope it's not terribly important. I googled it and did not get any answers that seemed to fit the context, although I admit, I didn't look very hard.

You get, after all, what you pay for.

But, yes, you should document. You should be documenting on everyone with performance issues. If you are only documenting her issues, and not everyone elses, well then, you've got trouble with a capital T, which rhymes with P, which stands for pool. Which reminds me, I need to find out about swimming lessons for offspring number 1.

Anyway, your problem will probably resolve itself, if she's getting close to using all 12 weeks of FMLA. Intermittant FMLA can be extremely tricky, so I hope you have someone who is an expert advising you on this. Make sure that absences are approved under this FMLA, and not assigned to some other bucket.

Contrary to popular opinion, you can still fire someone for performance reasons, even if they are on FMLA. You can also eliminate their positions. But, you are right in that so doing opens you up for attack. It's generally guilty until proven innocent in these situations, so you have to be prepared to defend yourself.

You say you are new. Take this opportunity to do things the right way. Don't let this happen again. Frequently, people are afraid to deal with problems, because we all hope they will just go away. Problem employees rarely go away on their own accord. And, they don't get better unless they have reason to.

So, document for anyone with problems. Keep tabs on the FMLA. And, as for the six hour accommodation, since you've already approved that, I doubt that you'll be able to change that now.

Oh, and please don't just document. Keep the employee informed as to the expectations. She may be thinking, "I'm sick, therefore I don't need to do X." You may also not have a clear understanding of her limitations. Please keep an open dialogue.


HR Godess said...

Great advice as usual! And for the record, I have no idea what NANA is either.

Anonymous said...

As long as the employee has hours/days of leave remaining, you cannot deny a reduced work schedule. However, you can count this reduced work schedule against the FMLA entitlement. By your example, and for simplicity sake, let's say you're working a 40 hour week - 10 hours per day x 4 days, 3 days off. This employee works 6 hours per day. So, you can count the balance (4 hours per day or 16 hours per week) against FMLA. This will eat up the FMLA quicker!

Also, if your employer has some sort of policy against performing work or activities that are restricted at work on off hours, you might want to monitor what this employee is doing while not working. Let's say this employee works for you as a camp cook, and due to her condition can only perform this job 6 hours per day, but miraculously is able to do similar work for a local eating establishment while not working for you. As long as you have a policy, she's could be toast.

If employers have to live by the rules of FMLA, then so do employees. I have no sympathy for employees who play the system!

Anonymous said...

Just figure out how much time she has left and inform her that her FMLA leave is up and she's expected to be at work and working every hour for her 6 hour shift each day. Make no exceptions after the FLMA leave is up. It sounds like she won't be able to handle it.

Olivia said...

FMLA is not a get-out-of-all-job-duties ticket. You should be tracking performance issues for all of your employees. If you wouldn't take this kind of job performance from a non-FMLA employee, you don't have to take it from her.

We had a similar situation, an employee with migraines, would be so doped up on medications that he would sleep for large portions of the day at his desk, come in really late, miss customer meetings, etc. We informed him that when he's here, he has to be working up to an acceptable standard, period. We provided a corrective action plan (as we would with other performance issues) If he doesn't hold up his end of the bargain, he'll be progressively disciplined until he's gone.

As long as you are consistent in your treatment of this employee per the standard of how you treat other employees, you should be golden.

Life with Kaishon said...

I just learned so much! And I am not even in HR : )

Anonymous said...

Ug. This is my biggest gripe around supervisors not understanding all the rules. You don't need to go to HR college to understand FMLA Policy, you just have to care enough about the process to understand it. I live in Washington state and I am sure it doesn't get anymore confusing anywhere else. If it is truly FMLA leave which I would be concerned about in the first place (does it even qualify) and I only ask that because you aren't sure how to administer it, how can I be sure you really understand how to count it? The leave you get from the doctor should be outlined, for example, 1 times a week for 6 weeks. Any leave outside of that may not qualify which would fall into any other attendance disciplinary program you have. If she is almost out, truthfully you probably aren't setting a precedent for others if you didn't establish the guidelines so lawfully you may be able to squirm a little there. At a camp position I would be concerned you even qualify to hand out FMLA at all...1250 continuously worked in a 12 month period. That seems atypical to me.

Anonymous said...

I agree with the above comment about eligibility. The employee must have worked 12 months (not consecutive) and 1250 (within the last 12 months) to be eligible for FMLA to begin with. If the employee does not meet this they are not eligible.
You can reprimand the employee for unsatisfactory work while on FMLA. The whole idea, even on a reduced schedule, is "Can the employee perform their assigned duties". as the employer you can also request a 2nd and 3rd opinion at your expense.
As far as keeping track of the hours I found it easy to use an excel sheet deducting the ours they take. I give a copy to the employee when we close the pay period and have them sign to acknowledge the hours taken and the hours of FMLA remaining. If you dont know FMLA I'd suggest going to the Department of Labor website:
I hope this helps.

Anonymous said...

I just want to say I officially love you for saying " you've got trouble with a capital T, which rhymes with P, which stands for pool."

I just said this yesterday to a group of employees and NO ONE got it. I was a fan of this BLOG before but now I think I'll consider myself a groupie!

Anonymous said...

One day you all (or a relative of yours) will get sick, and you will find out how it feels to need FMLA. Jerks

Anonymous said...

I work with the biggest bunch of dead beats you can imagine and the majority of them are all on FMLA. I would be willing to bet that over 90% of them are abusing the system. Oh, I have CFS (chronic fatigue syndrome), oh,I'm suffering from depression. Whaaaaa!!!!!
It is also a given that when these individuals call in, it is on a Monday, a Friday, a Thursday and Friday or a Monday and Tuesday, guaranteed Sometimes, they are gone for an entire week!!! Hmmm, a little pattern developing here???
FMLA is the biggest scams going and HR personnel should get some huevos and start eliminating all of these losers!!!
They do nothing but bring down company morale and cost companies ten's or hundred's of thousands of dollars in medical expenses and lost productivity.
Kiss my FMLA!!!

Anonymous said...

Wow. I'm glad you have not needed to use such a benefit your whole life. I pray you never need to.

Evil HR Lady said...

psst--anon Feb 23, if the doctor says the illness is severe enough to warrant FMLA, I can't exactly say, "I think you're making up this whole chronic fatigue syndrome thing."

If it's fraud, it's fraud, but you've got to get a doctor to be complicit in the fraud.

Anonymous said...

I am sure people do abuse this, but it is necessary for people like myself. I am on intermittent FMLA for chronic back pain. I have 6 bulging disc in my back and have to take Norco and tramadol 4x a day just to make the pain tolerable. I have an office job so the pain truly does affect my work performance, not just from days I have to call off but on days I am there the pain make it quite difficult to focus and stay on task. I am not just a whiny under performer looking to cheat the system…

Anonymous said...

I also think it's a blessing for those that have never needed FMLA and hope they never do. You should not judge anyone until you are in their shoes. I've used FMLA since the year it was passed and my mother had her first heart attack. As she declined, I found myself needed it more and more. Luckily the morning of the day she passed away I had used FMLA for myself due to herniated disc in my neck from a boating accident and I was home when she died. I have a miriad of health problems and would retire under disability if I could afford it, but I can barely make ends meet at the moment due to my intermittent absences. I understand my employers position, but I am also in a difficult position due to my health. What does one do?

Anonymous said...

It doesn't help the legitimately sick to be stigmatized in this way. We are not loafing, underachievers. We are people who would love to live a normal life if we could. Please don't lump us all in the same category.

Anonymous said...

I'm sure most HR techs would never be able to handle the so called "lazy loafers" job if they ever had to. Office jobs are very different from hard labor.