Leave Policy Missing In Action

by Evil HR Lady on December 8, 2008

A long-time employee went out on sick leave a couple of months ago, and has recently expressed the intention of remaining on leave for the next six months. The person is genuinely unable to work and has indicated informally that a return to the workforce is unlikely even though the health condition involved does not reduce life-span. I have received mixed messages from HR about what options are available to this employee and/or to me as the supervisor. For example: Can this individual remain on the payroll collecting sick leave until the leave runs out? When the paid leave runs out, can unpaid leave be continued for another three months under FMLA? Under what circumstances can an employee with sick leave available but no intention of returning to work remain on the payroll?

I don’t really have any answers for you, so I’ll just use your question as a jumping off point for a good rant.

Mixed messages? Are you kidding me? I mean, seriously people, this is HR 101. You must have a leave policy in place. It should contain, at minimum, the following information:

  • Number of days an employee can take as sick leave before going on short term disability
  • Number of company paid sick days (or if unlimited, then number of days before disability is required)
  • FMLA policy (make sure this is compliant with both Federal and State laws–some states are more generous)
  • At what point an employee is terminated (after FMLA expires? At 6 months? At one year?)
  • How all this fits with your disability (short and long term) policies
  • Under what conditions a manager is allowed to hire a temp or contractor to fill the duties
  • See, that’s not so hard, right?

    I mean, geesh, does HR think that no one is going to get sick? (Because that NEVER happens, right?) They should have a policy and every HR person in the company should be able to spout it out to you, consistently and clearly. (Okay, not every HR person. I don’t think the HRIS people should have to know–strike that, of course they should, as they control the system that indicates whether someone is active or on leave. ALL HR PEOPLE SHOULD KNOW THIS. Well, maybe compensation…)

    If you don’t have a policy, managers are left not knowing what to do. Then managers have to wing it. Then Manager A wings it differently than Manager B and Bob gets great leave at full pay and Maria gets terminated as soon as FMLA expires and she didn’t get paid during that time frame either. What happens when Bob and Maria (I’m feeling reminiscent of Sesame Street right now) run into each other in the grocery store? (Oh Bob is a person in your neighborhood, in your neighborhood, in your neigh-bor-hood!)

    Bob: Oh, Maria, I heard you were sick. Me too. I’ve had these persistent migraines. I’m so thankful that I’m still getting paid.

    Maria: What?!?!!??! (then a few chosen expletives, which I won’t write because I don’t say such words.)

    Bob: What are you so upset about?

    Maria: I haven’t gotten a check in 4 months and they terminated me 4 weeks ago.

    Bob: That’s strange, I’ve been out longer than you have.

    Maria: Excuse me, I have to go call my attorney.

    Is this what you want happening? No. No, you don’t.

    Now, my real guess is that there is a policy, it’s just that your HR department is unorganized and inconsistent. Escalate this issue. Get your boss involved. There should be clear guidance. This should not be an area for manager discretion.

    { 11 comments… read them below or add one }

    HR Godess December 9, 2008 at 7:46 pm

    Amen Sister! Why the HR department isn’t providing assistance, detailed assistance, is beyond me! It’s important that HR does it’s job and protect the company AND the employees. It’s obvious this department isn’t do that.

    Reply

    Bridget December 9, 2008 at 7:51 pm

    I work for an Optometrist office in California and one of our Receptionists is continually absent due to multiple medical problems that she brings in doctor’s notes for. Her unscheduled absenteeism is seriously affecting our office operations. We have spoken with her regarding this, but she keeps basically telling us that we can not put her on probation or terminate her due to disability discrimination and HIPPA regulations. Her doctor continually writes us medical notes saying that she “can return to full duties with no restrictions” after every absense. I feel like we are trapped with this employee. Can anyone please give me any advice?

    Reply

    Anonymous December 9, 2008 at 9:01 pm

    Bridget, I feel for you! What is her disability? Is it truly classified as a disability? She still needs to perform the essential functions of her job, with or without reasonable accommodation. I don’t see how disciplinary actions or termination due to excessive absenteeism violate HIPPA. My advice is to get more information from her and then do some research. I am in CA and it can be difficult to terminate an employee such as this, however not impossible. Having a disability is not a get-out-of-jail-free card.

    If your company has an HR rep, ask for guidance. If no HR rep then go to http://www.ca.gov/ research this topic. Or possibly speak with an attorney.

    Reply

    Bridget December 9, 2008 at 10:20 pm

    I’m not sure if her illnesses are truly qualified as a disability. She took a 4 month medical leave of absense for treatment of breast cancer, and then her first 2 weeks back we gave her a modified part-time schedule. On top of that she’s called in and had doctors’ notes for Wrist/Thumb Tendonitis, Thumb Arthritis, Bronchitis, Migraine Headaches and Neck Pain. Then today she brought me a doctor’s note saying that she “has intermittent asthma, can get frequent attacks of bronchitis, neck pain under work up and left knee pain under work up”. The “under work up” means she will need future treatment for these conditions.

    Reply

    Anonymous December 10, 2008 at 6:02 pm

    I don’t understand why you don’t already have her on FMLA. You’re not required (even in California) to continue to pay someone who is unable to do their job and if your company is under 50 employees, you may not even owe her that. Get ahold of your HR person (which I’m sure you don’t have if it’s a small office) or an attorney and figure out exactly what you do and do not have to do. Then sit down, and tell her what you can and cannot do.

    Reply

    class factotum December 10, 2008 at 6:43 pm

    “Thumb Arthritis?”

    Honestly. Is she dating this doc?

    Reply

    Bridget December 11, 2008 at 8:40 pm

    Our optometric practice only has 13 employees. We don’t have a designated HR Director; basically that’s part of my job and I’m not an expert. It looks like I will need to consult a labor law attorney, even though I was hoping I could handle this without spending more money. I like the “Then sit down, and tell her what you can and cannot do.” because she’s assuming control right now. The thumb arthritis comment was very funny; I needed that with all this stress, thank you … and no, she’s not :-).

    Reply

    HR Godess December 12, 2008 at 2:01 pm

    Doctor’s notes alone, does not mean that you have to keep her employed. I’m not an expert but it doesn’t appear that anything you have listed would cover her under ADA. It seems your office it too small for FMLA (less than 50 employees in a 75 mile radius). Just because she brings doctors notes doesn’t mean you can’t address her attendance problem. I would start there. It seems like she has every excuse under the sun not to work and a doctor that covers for her. That doesn’t mean that you have to tolerate it. I’d still try to talk to a labor attorney. Good luck.

    Reply

    Anonymous January 5, 2009 at 7:18 am

    I can’t believe how great this blog is. I have been out of the HR scene for about three years now and reading all of this brings it all back like it was yesterday. Evil…I love the HR 101!

    Reply

    Miguel Valdespino January 23, 2009 at 6:21 pm

    re: ALL HR PEOPLE SHOULD KNOW THIS.

    This is another advantage to having a consistent policy – even if a specific person isn’t able to quote it verbatim off the top of their head, they should be able to quickly refer to it and give out the correct information.

    Reply

    na October 16, 2012 at 3:37 am

    It’s HIPAA, not HIPPA.

    Reply

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