Regaining Control of Employee Leave

2 HYPOTHETICAL ONE: Nancy Numbers avoids an Action Plan

3 Good Company has an Accounting Supervisor, Nancy Numbers, who has been with the firm for 11⅔ months. Shortly after Nancy received a performance "action plan" to improve her performance, she went out on leave claiming stress and emotional distress. Good Company uses a third-party administrator for its short-term and long-term disability plans. Nancy received short-term disability for 90 days, but the insurance carrier denied her long-term disability application as not being supported by sufficient medical evidence. Nancy's doctor then returned her to work without any restrictions. HYPOTHETICAL ONE

Within two days of Nancy's return to work, Good Company's human resources department scheduled a meeting with her to move forward with the action plan. Upon learning of the scheduled meeting, Nancy left work again claiming that she felt "faint and panicky" and needed to go to the hospital. This time, her doctor has certified that she is under his care and should be able to return to work in 10 days. The doctor has not provided a specific diagnosis to Good Company of her condition or why she is unable to return to work. 4

HYPOTHETICAL ONE Rumors circulate that Nancy has been interviewing with other companies while she is away from the office. Senior management feels that she is gaming the system, and would prefer to just end her employment and move forward with termination and not deal with her anymore, given that she has done nothing to indicate that she will be receptive to improving her performance. 5

6 HYPOTHETICAL TWO: Sammy Shipper and the Unexplained Seizures

Sammy Shipper works in the shipping and receiving department of Awesomely Big Company. Sammy is primarily responsible for the receiving department in the warehouse, but it is sometimes necessary for him to operate a fork lift—particularly when he works on the weekend, because no other certified fork lift operator works on the weekend. Sammy also routinely works in an area where fork lifts and other heavy machinery are used. Sammy starts experiencing seizures and his doctor takes him off of work. As indicated on the FMLA paperwork, part of the treatment for Sammy's condition is taking a narcotic drug "as needed." After exhausting his FMLA leave, Sammy's doctor allows him to return to work. The FMLA certification states that Sammy has no restrictions and does not mention anything about what caused Sammy's seizures or his continued narcotic use. 7 HYPOTHETICAL TWO

ABC is skeptical. First, ABC is worried that Sammy's potential for seizures poses a safety risk to himself and to the other workers in the warehouse if he works in there and operates a fork lift. ABC also is concerned that Sammy may still be taking the narcotic that would impact him during working hours. ABC does not have any other open position for which Sammy is qualified. It also has a policy against any employee being off work for more than six months for any reason, at which time any such employee is terminated. 8

HYPOTHETICAL TWO ABC refuses to let Sammy return to the warehouse, but advises him that he will be given first priority for any jobs that open up, provided that he is qualified. Sammy's physician sends a follow-up note indicating that Sammy is able to work without restriction provided that he be allowed to take the rest of the day and one additional day off in the event that he has a seizure that requires him to take the narcotic. Reminding Sammy that he has no FMLA leave left, ABC declines to let Sammy come back to work. After six months, Sammy's employment is terminated pursuant to the Company policy. 9

10 HYPOTHETICAL THREE: Emily's lingering lumbago

Emily Efficient is the executive assistant for the chief administrative officer of Xylophones, Yehus and Zithers, Inc., an exotic musical instrument company. Emily has worked for XYZ for ten years and has been a model employee. In January, Emily requests and receives four weeks of FMLA leave to care for her widowed mother, who had complications related to her ongoing chemotherapy. XYZ accounts for FMLA leave on a "rolling 12-month" basis. 11 HYPOTHETICAL THREE

Luckily, Emily's mom recovers. Emily returns to work in time for the always-busy spring Zither season and in early March is thrilled to learn that she is one-month pregnant with her first child. In May, two months after her return to work, Emily develops pregnancy-related sciatica. Due to complications related to the sciatica, her doctor requires her to begin bed rest eight weeks before her due date. Emily's doctor does not certify her to return to work until four weeks after she gives birth. XYZ cannot wait for Emily to return and reluctantly grants the post-FMLA leave. Three days before her scheduled return, however, XYZ is surprised to learn that Emily is requesting two additional weeks to recover from her condition and has a set of work restrictions that will preclude her from sitting for uninterrupted periods longer than 30 minutes. 12

HYPOTHETICAL THREE In early December, Emily is distressed to learn that her mother's cancer has returned and requests unpaid leave on an "as needed" basis to care for her mother following her difficult chemo treatments. 13