SR: FMLA and Non-FMLA Leave Mixed

I have an employee who, in the past few months, has had to take leave without pay several times because she has exceeded the sick and vacation time she earns. Some of that time has been FML and documented with our HR office, but not all of it, in fact not most of it. After it seemed like she was taking Leave Without Pay (LWOP) consistently (3 months in a row), I had a talk with her about her absences. Only after that discussion did she go to HR and began with the FML documentation, since some of the time she was out was due to her daughter getting tubes in her ears. Things calmed down and there were several months she didn’t exceed her time earned, but this month she is over again. None of the time this month has been filed on FMLA with HR.

My question is, during her annual performance evaluation, can I mention attendance as a problem and give her a lower rating than last year? Or should I not mention it because some of the time was FMLA?

I’m not a lawyer, nor do I play one on the internet, but this is really tricky and complicated. Some guy just won a court case where he didn’t ask for FMLA but the court said the company should have offered it to him. (My Google skills failed me and I can’t find it, but it was a pharma sales exec and I want to say Virginia–someone help!) So, urgh.

Technically, you can hold non-FMLA time against people but not FMLA time and what becomes tricky here is that she may have taken days that would have been FMLA eligible if she had only asked for it, but since asking for it might not even be a requirement, I’d probably go over her absenteeism with a fine tooth comb and credit any day that could have been FMLA eligible towards FMLA. Then I’d bring up the other absences as part of her performance appraisal.

I don’t know how that would pan out, because it’s going to be really hard to say, “You’re not in trouble for missing these days, but you are in trouble for missing those days.


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11 thoughts on “SR: FMLA and Non-FMLA Leave Mixed

  1. Evil HR Lady –

    My husband's company will not let one use FMLA unless they've first exhausted their PTO. So if you have a life event, you've to use up your vacation AND sick time (!?) first and then if the stars are aligned properly then you can use FMLA time. There used to be separate vacation and sick time, but now it's all lumped together as Paid Time Off.

    Any wisdom on this one?

  2. I agree that you're better off proactively offering her FMLA, rather than playing "gotcha" when she doesn't ask. Then, for anything that doesn't fall in FMLA, say to her, "We're more than happy to help you accommodate this sort of thing when it falls under FMLA, but there's a separate issue entirely, and that's excessive absenteeism totally aside from those absences. If we remove your FMLA time away from the playing field entirely, you've still missed X days of work a month, on average. Aside from FMLA-type absences, we need to be able to rely on you to be here consistently, which means ___," blah blah blah.

  3. Do it concurrently, meaning pto and fmla. Then tell her unless it's fmla you won't approve any time off. That should separate the two in the future.

  4. She only gets 12 weeks a year to take care of that kid away from work. Has she exceeded that 12 weeks yet? If her absenteeism less the FMLA is still something you can't tolerate in ees in your department, then definitely hold it against her in her review.

    Llama, llama – Your husband's company isn't doing it right. What they are doing is effectively stating that the PTO they offer is also job-protected leave, and that they don't mind you extending your total leave time to more than 12 weeks. Say you have 3 weeks of PTO available and then you're tacking on 12 weeks of FMLA after that. You're out 15 weeks. If that's what they're doing, then they're handing you a gift, a better benefit than the federal government requires, and you should not complain.

    The majority of companies do require that you use up PTO while on leave. The idea is that they don't want you to go on vacation right after you come back from 12 weeks of FMLA. So they run the FMLA concurrently with any available PTO at the beginning of the 12 week period.

    Between my company & your husband's, everyone comes back to work with zero PTO left. The difference is, your husband can be out longer than me.

    Sounds like someone in your husband's company needs to take an FMLA class or run the handbook by a labor lawyer.

  5. OP did the employee tell you every time she took a day off what it was for? Do you know wether or not her daughter had complications for that very sucky surgery? Do you know how long it took and what was required of her before she finally got the diagnosis that led to the treatments. Everything above is FMLA, not just the surgery time. I think if you want to keep her, you should pull her in with a calendar.. and go over her absences with her, while assuring her you are doing it for HER benefit so that she can appropriately count all FMLA days from the past.. covering everything that the act allows for .. so that the only things on her record are true absences (IE i felt like slacking days) and not.. "I'm sorry my daughter got sick but this does not prevent me from developing bronchitis" those would be personal sick days.. and I'm sure you allow those right?

    I'm sorry I'm a very big stickler for sick leave and FMLA.. sooooo many employers out there don't give a crap about their employees and give.. OH 3 days of sick time.. and because you aren't fancy ZERO vacation time as well.. and THEN have the AUDACITY to bitch when an employee comes in STILL contagious, because they weren't ALLOWED any more time off. People get sick.. and not everyone abuses it

  6. Huh?

    My son just got tubes in his ears, 12 days ago, at Children's hospital. So I know of what I speak.

    Time into hospital: 6:30 AM.

    Time we were back on the road, with him in the car: 8:45 AM.

    Time that he seemed pain-free (he took Tylenol) and basically 90% back to normal: 1:00 PM.

    Time that the anesthetic had completely worn off and he was his normal self again: The next morning.

    Days that we needed to give ear drops: 3 days, if I recall correctly. Might have been 2.

    TOTAL time involved for the actual surgery: one single day for travel, surgery, and recovery, plus 5 minutes over 2 days to give drops.

    We also had two audiology consults (an hour each, tops) and spoke to the surgeon a few times (say, an hour each MAX though it's really 10 minutes, and you only need to do it twice.)

    Unless there is a complication, ear tubes are one of the speediest and more minor surgeries you can get.

  7. because it's going to be really hard to say, "You're not in trouble for missing these days, but you are in trouble for missing those days."

    My company has no qualms about doing that. Anything that's not clearly labeled as FMLA time is fair game when it comes to disciplinary action, and you have to be proactive about it. One of my coworkers had to have her doctor's office complete one of their forms five times before the company would accept it, and in the meantime they were threatening disciplinary action for attendance. What I'm worried about is what happens when you exhaust your 12 weeks – I'm on intermittent leave and have precious little FMLA time left before my eligibility period renews later this year.

  8. because it's going to be really hard to say, "You're not in trouble for missing these days, but you are in trouble for missing those days."

    It is difficult to run a business when someone doesn't come to work 1/4 of the year.

  9. You said it was "in the past few months" – I certainly wouldn't you talking to me like I was a child to add to the stress of her situation.

    "You're not in trouble for missing these days, but you are in trouble for missing those days.

    I have never heard of FMLA and I have been working in the corporate sector for approx 20 years. Why hasn't anyone explained this to their staff members?

    Thanks for tip, now I can go over the Act.

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