Human Resources News & Insights

What would you do? Reliable employee out of FMLA leave but needs surgery

Periodically, we present a real-life workplace problem and ask three HR managers to provide a solution. This week’s problem: A good employee is out of leave, including FMLA, but needs a medical absence.

The scenario:

“Hey, Sandy,” said supervisor Joel Duff. “Do you have a minute?”

“Sure,” said Sandy Warren, the company HR manager.

“It’s about Gwen Rossdale,” Joel said.

“How’s she doing since she got back from her mother’s funeral?” Sandy asked.

“Well, that’s the thing. She’s really been hit hard this year,” Joel said. “Now she needs to go back in for another surgery.”

No time left
“I think I see where you’re going with this,” Sandy said. “She already used all her FMLA leave for her last surgery, didn’t she?”

“Yeah. And, she had used up all of her sick days before the surgery,” Joel added. “She only has one vacation day left because she took a week to get her mother’s affairs in order.”

“Wow, this really is a tough situation,” Sandy said. “She just doesn’t have any more days left.”

“I know. But Gwen is a great worker,” Joel noted. “She’s been here for more than five years, and her attendance records have been great until recently.”

“Do we know how long she would need to be out for this surgery?” Sandy asked.

“She brought in a note from her doctor that said it would be another six weeks or so,” Joel answered. “She’s really upset about this. She’s even talked of postponing the surgery, but her doctor thinks she needs it now.”

“Well, we certainly don’t want her to do anything that would jeopardize her health,” Sandy said.

If you were Sandy, what would you do or say next?

Christine Hoffer, HR director,  Brewster, OH
What Christine would do: This is definitely a sensitive situation. Going over the different options with the employee and the supervisor might be helpful. We’d probably have to terminate the employee, but then encourage her to re-apply when she got better. I would do my best to find a spot for her.
Reason: I need to be able to replace that person or else it would be a real hardship for our company. But I can usually find a spot for a good person when she’s ready to come back.

Barry Touinen, HR manager, Fullerton, CA
What Barry would do: Well, the main thing is that if we have good employees with good attendance we’re going to look out for them. We’re more likely to hold their jobs. If it’s going to be six weeks, I’m not sure we’d pay her for the whole time, but we certainly wouldn’t let her lose her job.
Reason: We believe that good employees who are dedicated workers should get something back from the company. Bad luck happens, and you don’t want to abandon people in a difficult time.

Joyce Hogan, HR manager,  Cleveland, TN
What Joyce would do: There are a couple of different options in this scenario. In our company, sick days carry over and you can accumulate up to 90, so that might be an option. Or, we offer short and long term disability. We would really want to work with employees in this situation to look out for their best interests and ours – which means keeping them on board.
Reason: We don’t want to lose loyal, dedicated employees. We want to be good to them so they’ll stay around. That’s why we have processes in place to deal with this situation.

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  • Robert

    The problem with the answers from Joyce and Barry is that they leave you open to “other” employees legal actions. Once you set a precedent, it has to be applied fairly. What if the situation was reversed and this was not “a good employee”, would you consider the same scenarios and why not. If the company has no leave policy or disability that can be applied fairly across the spectrum, you open the company up for legal actions from those not so “good employees” who have “bad luck”.

  • Debbie

    I see no problem with granting an unpaid leave of absence. In the company where I work, all benefits cease during unpaid leaves of absence — so if the employee wanted to continue his/her medical coverage, he/she would have to do so through COBRA. There aren’t many people who actually WANT to be on an unpaid leave of absence, so I don’t think this would set a precedence that would be abused.

  • Debbie Williams

    If this employee is allowed the surgery, what about her insurance benefits. If she has no sick time and FMLA has run out doesn’t her insurance benefits terminate also?

  • Lynn G

    We offer personal leave time. She would be able to remain off up to 12 weeks, as well as apply for short term disability. She would not have the protection of FMLA, but more than likely she would be able to return to her job.

  • http://HRMorning Patricia Gutierrez

    Hello,

    I would first see if this qualifies under ADA. She would qualify under our personal leave of absensce policy with no guarantee of position reinstatement. I am confident this would not set a precedent with other employees. Also, not very many employees would want to take an unpaid personal leave of absence unless they are serious about returning to work.

  • Lindsay

    I agree with Robert. In Human Resources, you have to work hard to be consistent. I have a tough time convincing my company sometimes that it doesn’t matter if it is a “good” employee or a “trouble” employee–if we do for one, we must do for all. Otherwise, we’re making ourselves vulnerable to a suit.

  • Pingback: FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update April 20, 2009

  • Christine

    What about her option of working from home during this time? What about Short Term disability?

  • S. Robin

    We recently had this very thing happen. One of our employees husband fell 20 feet out of a tree stand falling on his head. This employee had only been with us for 11 months and did not qualify for FMLA and had very little sick time accumalated. She had proven to be an assett to our company so we came together for her and allowed her to work 2 hours a week to keep her “status” and staff that had accumalated the maximum amount of sick leave donated hours to her. Thankfully her husband was out only four weeks and made a full recovery. We have since written a P&P on the requirements for recieving “donated” sick time one of the requirements is that you are not in violation of the attendance policy and you are not eligible for FMLA.

    So far this has worked very well for us we’ve only had to use it in two instances and I believe if employees know that you are there for them they will go out of there way to be more understanding and flexible, we are a small facility and I’m sure that makes it easier than in some huge corporation.

  • Yvonne Chandler

    Fortuanately, I am a Washington State employee. We have shared leave. Employees that work for the State of Washington are afforded the opportunity help each other by donating leave. The amount of leave is calcuated to reflect the salary of the person donating leave. There is a crieteria for donating and receiving shared leave…however Sandy in this case would be eligible…because sick and vacation leave must be exhausted before shared leave donations can be used.

  • Roni

    FMLA leave was put into place to protect an employee’s job so the employee can’t be terminated during FMLA leave. FMLA does not require the employer to terminate an employee if they need additional time, so it is up to the employer to determine on a case by case basis if they want to retain that employee. I would give the employee unpaid time off, maintain insurance benefits and offer short term disability.

  • Michael

    Our role as HR is to protect the excellent employees as it will cost us a lot of money to replace them.
    So we need to find a solution that will keep her in the company-half and half etc.
    I understand the delicate legal issue if we discriminate between “good” and “bad”-we can find a creative idea how to do it.

  • http://www.monogramsystems.com Jeanette

    Although it sometimes comes back to bite us, our policy allows for six months of personal medical leave, which could be even longer for pregnancy (we’re in CA) or someone who is determined to be covered under ADA. We’d rather err on the side of being good to our employees and it shows…average tenure is about 17 years, with some as long as 47!

  • Jamie

    I agree with Robert. If you are not following previous precedent, this opens a whole new can of worms. Our company offers a personal leave of absense once STD and FMLA have been exhausted. Across the board, an ee can be on leave a total of six months then it would be determined if the ee is able to return or would require to be out longer. If out longer, we terminate and encourage to reapply when able.

  • Tom

    We would have no alternative, but to terminate the employee with no guarentee of rehire. We would certainly consider her for rehire just as we would any other applicant. This is exactly what we did prior to FMLA. In many cases we did, in fact, rehire employees who left for medical or other personal reasons.

  • AZHR

    This concept of diving into the policy manual to determine that every issue must be treated exactly equal is ridiculous–why have the word “human” in your title. If problems are so cut and dry a computer program would be able to do our jobs.

    It’s not “fairness” you must seek, its ensuring decisions are not based on discriminatory reasons. If this person was granted time off because she is white and others are not granted time off because they are non-white–THAT’s A PROBLEM. But if giving someone consideration during exceptionally difficult circumstance becomes “illegal,” we are all doomed……..

  • Ken

    Hello
    I agree 100% with AZHR. Ask yourself how you would like to be treated. I would treat this situation the same for any employee. If it happend to be a bad employee then that’s are fault for not dealing with that person before then. The world is becoming to cruel. Seldom are human issues black & white and can be handle the same. Give her the time off and work short handed until she returns or hire a temp if you can.

  • Martha

    I’d put the employee on un-paid leave for up to 6 months and hire a temp to fill in for her. She’d be able to draw short term disability – that’s why we provide the s.t.d. for our employees, which pays them this benefit for up to 6 months.

  • Karen Budrow

    I agree with Christine H. I am HR Dir in a highly unionized environment and what is allowed for one, good or mediocre employee, must be availablr to all. If the employee is fully able within a reasonable time and I have not found as solid a replacement, she would be welcomed back.

  • Kay

    We have a separate policy for personal or medical leaves not required by law (such as FMLA). These are granted on a case by case basis dependent on many factors that affect the employee and the company. This doesn’t exclude anyone and each case is looked at to prevent someone from taking advantage.

  • John

    Have had to deal with this situation. This has happened three times since I have been the HR Captain. Many are so stuck on ‘rules’ that thinking becomes somehow the wrong thing to do. There is no law or rule that says that everything has to be one for one. That is impossible. What the law requires is consistent behavior. (No that does not mean that consistently wrong behavior becomes acceptable.) AZHR is correct. As long as a decision is not made on an ILLEGAL discriminatory factor then extraordinary circumstances can certainly be handled on a case by case basis.

    In each of our cases we granted unpaid leave with a 30 day review. If the employee could return in a ‘reasonable’ amount of time we would value the employee and protect their position. Also if it were possible we would find alternative work within the city that the employee may be capable of doing. Others may feel compelled to do otherwise but as others here have statedwe are HUMAN first and resources second. Protecting our employers includes protecting the human capitol that our employers have invested in.

  • Michael

    Agree 100% with AZHR-this is the essence of our job

  • lillian

    If the employee has been with the company for so many years and has never had issues especially attendance and not abusing the system; the company offering leave without pay (not to exceed 30 days) ; after the employee has exhausted FMLA guidelines, vacation and other PTO that company offers should be a substancial unpaid time off assuming the employee is returning back to work after recovering… it is would always a company judgement in how to execute the leave without pay, first of all the company should have a leave of absence policy…

  • Ron Regalado

    I would like to leave a few comments about my situation, I am a excellent employee with good attendance record for the past 11 years at the chemical plant I work for in Colorado. I was recently forced to resign after 12 weeks of FMLA/Short term disability from my company and told my legal counsel from corprate that my plant manager called and said I was a well liked and excellent employee and they would like to re-hire me back after I am ok. According to corporate they must follow their hand book policy that states “employee will be considered a voluntary resign after 12 weeks. My response to him was if I was that good why was i let go, it is not written in stone that they have to terminate me. Also 1 employee 25 years younger that me was allowed to go out 16 weeks (car accident) on short term without fmla, I did not learn of this until after the fact, another was allowed 6 weeks after shoulder surgery he also not required to file fmla paperwork. What a shame the wqy i was treated and all the experience they lost with me, my position was a Lead Tech in a extremely complex blending process.

  • Ron Regalado

    I would like to leave a few comments about my situation, I am a excellent employee with good attendance record for the past 11 years at the chemical plant I work for in Colorado. I was recently forced to resign after 12 weeks of FMLA/Short term disability from my company and told my legal counsel from corprate that my plant manager called and said I was a well liked and excellent employee and they would like to re-hire me back after I am ok. According to corporate they must follow their hand book policy that states “employee will be considered a voluntary resign after 12 weeks. My response to him was if I was that good why was i let go, it is not written in stone that they have to terminate me. Also 1 employee 25 years younger that me was allowed to go out 16 weeks (car accident) on short term without fmla, I did not learn of this until after the fact, another was allowed 6 weeks after shoulder surgery he also not required to file fmla paperwork. What a shame the way i was treated and all the experience they lost with me, my position was a Lead Tech in a extremely complex blending process.

  • John

    Ron,

    If what you say can be substanciated you have a cause of action against the company. If you are over 40 you may have an ADEA claim. The other claim may be an inequity or it may not. What you would have to prove is that under similar circumstances with the other employees that were granted a different action, you should have fallen within that same consideration. On the other hand if you are considered what is legally described as a “key employee” then the company may have firm legal ground to defend their decision.

  • Crystal

    I have a great employee who’s FMLA is coming to an end. What do I need to provide to him with (info) regard to his rights now that FMLA is ending. If you have a website with this information I would welcome it.

    Thank you.

  • H/R Steph

    Does your company offer unpaid leave? This might be an option for this employee. Also if they are taking care of a immediate family member spouse, son, daughter, or parent that is active duty military they qualify for 26 weeks instead of the normal 12.

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