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.