Posted on 12/17/2006 8:00:46 AM PST by Tahoe3002
Looking for information or feedback re FMLA. By law, Texas is a "right to work" state. Until the FMLA is invoked, then it is next to impossible to fire someone for non-performance, insubordination, etc.
I have a female employee who has, IMHO, abused the FMLA, her co-workers, managers, etc. And Human Resources will NOT allow her termination out of fear of a FMLA related lawsuit.
Would appreciate any related experiences that will help me resolve the situation.
Merry Christmas to all FREEPERS!
Unfortunately, there is not much recourse. FMLA is similar in "good intentions-unforseen consequences/abuse" aspects to the ADA (American Disability Act)...good intentions, much abused.
But, it is never too late to begin documentation, which is what you need to do for just cause termination. Ensure you have the job description written correctly, and hold her to it in her evaluations.
My sympathies. A tough situation indeed.
Document any and all aspects of inadequate performance of job duties when she's actually there - and terminate based on failure to perform job duties.
How can someone abuse FMLA? The law is the law. Either she is following it or not?
As a retired employee of ATT I observed instances firsthand of FMLA abuse. All it takes is a willing doctor. If invoked properly there isn't much an employer can do. Document, document, document...
There are even books(user manuals) on how to maximize FLMA. It lowered workplace morale when we saw people getting time off with pay for no good reason and management could/would do nothing to change it. Good luck!
She did not go to the hospital, no surgery, etc. The definition within FMLA is "serious medical condition", which to me is PHYSICAL, but evidently it is now MENTAL.
Seems Drs. write FMLA work excused absences at the REQUEST of their patient, and fear of a lawsuit. IMHO.
Well you can always deny her the right to take it and take your chances in court. Good luck.
"It lowered workplace morale when we saw people getting time off with pay..."
You know that FMLA is unpaid leave right.
your company has to contact her doctor in order to find out her limitations and responsibilities. Conditions either improve and, or worsen as far as her reasons to be on FMLA. Her job title (not pay) could change and there are guidelines to follow
Doogle
True mental illnesses are medical conditions. They are biologically based. You can't just pull yourself up by your own bootstraps out of schizophrenia or severe depression or severe obsessive-compulsive disorder.
I'm not saying your employee isn't abusing the system. And even if she is genuinely ill there does come a point when an illness or medical condition interferes with a person's ability to do a job - a quadruple amputee wouldn't make a good masseur - but legally speaking it might not be worth it to claim she's reached that point yet.
Mrs VS
Both the FMLA and ADA are open to litigation and interpretation in the way they are written.
You want some legal advice? Do not solicit legal advice on the internet.
Like I stated earlier in the thread, the originator of this thread can deny her and risk it going to Court.
It's not that difficult to document a pattern of ON THE JOB abuses and non-performance. As long as the individual is not on FMLA leave, FMLA doesn't matter. Remember, FMLA is the Family Medical LEAVE Act. It says nothing about protecting poor job performance.
As for FMLA, it's fairly well defined as to the obligations of the employee. If the employee doesn't meet the requirements or fulfill their obligations, they lose FMLA protections. I've personally held hundreds of employees to the fire about their obligations (documentation, notice, etc.) and I've only had to discipline a few.
Used personally, it is paid.
How do you abuse the FMLA act??? Do you mean she uses the FMLA act???
"Used personally, it is paid."
Um I believe that all paid leave has to be expended/used first before FMLA can be invoked. And at that point, its unpaid.
http://hr.nd.edu/questions/faq_ben/faq_ben_taw_fml_pay.shtml
I have read the act from cover to cover numerous times...I have used it as well...Doesn't pay a thing...
You have recourse...You can deny her doctor's opinion...Send her to your doctor (at your expense)...If she disagrees with your doctor, she goes to a neutral doctor whose determination is final...
"based on failure to perform job duties"
Good luck with that. We have been documenting an employee's lack of showing up for work, coming in late, etc. Apparently, failure to show on the job is not an employment requirement for my company. HR wanted the entries pulled from her record.(yes, she is a "minority")
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