How does FMLA limit my right to discipline employees with excessive absenteeism problems?

The Family and Medical Leave Act (FMLA), a labor standard and leave law, makes you liable for punitive damages should you violate job protection rules. It's no surprise, therefore, that many employers avoid confronting excessive absenteeism for fear of facing a lawsuit somewhere down the road.

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Does a doctor's note legitimize excessive absenteeism? More important, does it mean ''hands off any employee who relies on a doctor s note to substantiate his own or a family member s illness? These are difficult questions, and the correct answer will depend on the laws of your state. Still, a little knowledge will go a long way in shedding some light on the mysterious shadows surrounding FMLA.

What s important to remember when looking at the FMLA s reach over your company s performance management program is that FMLA-related leaves apply only when an employee or family member has a ''serious health condition as follows:

1. An episodic or chronic condition that requires inpatient hospital stays

2. Continuing treatment by a healthcare provider

3. A period of incapacity of more than three calendar days

More often than not, employees who take off for sick time don t necessarily meet the threshold of having a ''serious health condition. As such, the FMLA may have little impact on your decision to document excessive absenteeism in the form of progressive discipline or to ultimately terminate an employee who violates your company s absenteeism control policy.

On the other hand, doctors' notes may preclude your taking any adverse action (including progressive discipline or termination) against an employee for one key reason: in certain states, medical certifications need not identify the condition being treated unless the employee consents. Therefore, a doctor s note will usually only tell you the date of the condition s onset and its estimated duration—no more. As a result, determining whether an FMLA-qualified ''serious medical condition'' is at hand may be difficult. When in doubt, speak with legal counsel about your rights when doctors allow the individual to take what appears to be excessive time off. Cases like this need to be handled on a case-by-case basis.

How can an EAP (employee assistance program) help?

Employee assistance programs (EAPs) can play a very important role in your company's performance management system. EAPs are highly recommended because they are one of the most cost-effective benefits available to employees and employers alike. The concept is simple: Personal issues in workers' lives will ultimately impact their work. When employers provide their workers with a confidential service to help them work out their personal issues, the workers performance on the job won't suffer.

What kinds of personal problems do EAPs deal with? Among the most common issues are:

- Alcoholism

- Drug addiction

- Depression

- Anxiety

- Family crisis (divorce, illness, death)

- Family issues (raising teenagers, marital discord, blended-family issues)

- Bereavement

- Suicide prevention

Intake counselors at the EAP refer confidential callers to the appropriate providers in their neighborhoods. Callers benefit from the confidential services available to them, and companies should benefit from reduced absenteeism and workplace injuries, as well as from increased company morale.

Since you don t want your managing supervisors to ask employees about their personal lives, this benefit can go a long way in helping managers help their workers without imposing or crossing a line. Managers can simply say, ''Sam, you re giving me too much personal information. I care, but I'm not your best resource. Remember, we have an EAP to help you at times just like this. I'm sure they ll be able to help you better than I could.

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The costs of EAP programs are typically based on the number of employees who will have access to the program. As a general rule, figure that premiums range from $2 to $3 per employee per month for a basic program. (If you choose a higher benefit level, those amounts may increase.) So if you have 500 employees, the cost could be somewhere between $1,000 and $1,500 per month.

When you document substandard job performance in a written warning, you may want to include an EAP referral as part of the performance improvement plan. After all, referring an employee to an EAP is a very proactive, responsible step that you might take as an employer to help your staff members. Be careful, however, not to make the EAP mandatory. The beauty of the benefit lies in its voluntary nature. The confidential nature of an EAP is compromised if you make it an extension of your disciplinary authority. Here s how to document an in formal EAP referral in a written warning:

Nina, our employee assistance provider, Prime Behavioral Health Group, can be confidentially reached to assist you at (800) 5555555. This is strictly voluntary. A booklet regarding the EAP's services is attached to this document.

In addition to informal, voluntary self-referrals, there are also ''formal referrals where you, the employer, become involved in the process. For example, if an employee exhibits flagging performance and also appears mentally depressed, suicidal, or potentially hostile, you may then formally refer the individual to the EAP. In the case of formal referrals, you would discuss your perceptions of the work performance problems with the intake counselor on the front end and, with a signed release from the employee, receive limited feedback about the individual s attendance, compliance, and prognosis.

In certain cases (for example, with potential workplace violence issues), you have the option of not permitting the individual to return to work without a ''return to work release from a licensed healthcare practitioner. Note that such leaves are typically paid through the period of initial evaluation. Beyond that, the employee must use accrued time off to be compensated while receiving further treatment.

Still, be sure to discuss ''formal EAP referrals with legal counsel before initiating the process. Recent case law shows that plaintiff attorneys have argued that formal EAP referrals have created burdens for employers under the Americans with Disabilities Act (ADA). Specifically, these attorneys have argued, on the basis of a mandatory EAP referral, that the employers did indeed perceive that their clients were disabled. (The ADA protects individuals who are perceived as having a disability.)

Furthermore, you may strongly suggest that an individual contact the EAP, but you shouldn't mandate that he attend by threatening termination. After all, the employer-employee relationship blurs when you mandate that a worker see a mental healthcare professional outside the workplace. As a matter of fact, such a requirement can even give rise to claims of invasion of privacy in certain states. You ll probably be better off making a note in your log that the worker refused your invitation to speak with the EAP counselor and leaving it at that.

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