Family And Medical Leave: Managing Employees With Chronic Health Problems And Poor Attendance-Without Getting Sued

Habitually absent or late employees can cause big headaches, leading you to discipline or even terminate those who don’t improve. But an employer who fired a worker with peptic ulcers for poor attendance recently learned the importance of using caution before discharging someone who might be covered by the family leave laws.

Ulcers Cause Work Problems

Kathleen Victorelli was a technician at Shadyside Hospital for five years. She had a history of tardiness and attendance problems, particularly on Mondays and Fridays. Although she usually provided a doctor’s excuse for the absences, she was issued numerous warnings by Shadyside. Eventually, despite high marks on her performance evaluations, she was fired for her attendance problems and for abusing the hospital’s sick leave policy.

Law Covers Periodic Absences For Chronic Illness

Victorelli sued, contending that Shadyside violated the federal Family and Medical Leave Act (FMLA) by discharging her. Under FMLA-which covers employers with 50 or more employees-eligible workers may take up to 12 weeks of leave for, among other things, their own serious health condition.

A ‘serious health condition’ includes a long-term chronic health problem that requires periodic visits to the doctor and results in occasional episodes of incapacity. Time off needn’t be taken in large chunks, but can be intermittent-in increments as short as a day or even an hour at a time.

Shadyside argued that Victorelli’s case should be dismissed because she wasn’t covered by FMLA. Her ulcers were minor, the hospital claimed, and did not result in an ongoing inability to work. But the Court of Appeal disagreed. It pointed out that FMLA clearly protects not just workers who are continuously incapacitated, but also employees who are only occasionally unable to work because of a chronic illness. Victorelli now can try to prove to a jury that her ulcers were sufficiently severe to qualify as a serious health condition covered by FMLA.

Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.

How To Reconcile Attendance Problems And Family Leave Rights

This decision emphasizes that if an employee has a chronic illness-such as asthma, diabetes or serious ulcers-frequent absences from work may be protected by the family leave laws. But it’s not always easy to determine whether poor attendance is the result of a health condition covered by the law.

Here’s what you can do to identify family leave issues and steer clear of disputes:

1. Exercise caution before terminating workers for absenteeism. Employers are responsible for determining whether an absence qualifies for family leave. If you’re unsure whether the employee has a protected health condition, you may want to review FMLA’s definition of a ‘serious health condition.’ 

   Also, if the employee has provided medical certification of the need for family leave, you have the right to obtain a second or even third medical opinion if you question the validity of the original certification. 

    

2. Use family leave form. In California, it’s illegal to ask about the specific medical reasons for a leave unless the employee volunteers them first. The safest way to get the information you need to determine whether an absence is covered is to give the employee a ‘Family Care Leave Certification of Health Care Provider’ form in which they can explain the need for leave and its expected length. (See the CEA Family Leave Compliance Guide mentioned above.)

    

3. Allow intermittent leave. Workers don’t have to use all their family leave at once. They can take it intermittently, such as a week or two at a time. Or they may reduce their work schedule. You can only count the actual amount of leave taken against their 12-week entitlement. You are allowed to limit leave increments to the shortest period that you normally use to account for absences or leave. Also, you can temporarily transfer an employee to a different position that better accommodates their reduced work schedule or intermittent leave-but the new job must have equivalent pay and benefits. (Note that these intermittent leave rules only apply to time off for a serious health condition. Separate rules cover intermittent family leave to care for a newborn.)

    

4. Keep careful records of leave taken. When absences are short or intermittent, it’s easy to lose track of how much of the 12 weeks of family leave has been used. So it’s critical to keep detailed records.

    

5. Address performance and discipline issues. If an employee continues to have health-related absenteeism problems once their family leave is exhausted, you can take disciplinary action. However, this may get complicated if the person’s condition qualifies as a disability under the Americans with Disabilities Act. You could be required to allow additional leave as a reasonable accommodation, but only if the employee can perform the essential functions of the job and the additional time off isn’t an undue hardship for you.