We have been having problems with a couple nurses on our unit lately. This is not a direct patient care problem, but an indirect patient care issue and morale problem. Apparently at some point there has been some attendance allowance made through FMLA for these nurses due to chronic health problems. Both nurses are highly litigious. In a nutshell, we are seeing patterns of poor attendance on assigned weekends which are then ascribed to chronic health problems.
As an example, in one situation there has been, out of 12 weekend days assigned, 7 absences. However, during the same time period 1-2 weekday absences.
My question boils down to this. What, if any, actions/documentation is required in this circumstance on the part of the nurse mgr who is attempting to counsel this employee? There are conflicting reports that somehow these nurses are exempt from the normal discipline process?? Any help/tips on this situation would be greatly appreciated!
I don't think that this is necessarily abuse of FMLA. It MAY be. (I know someone who gets debilitating migraines--but usually only on Sunday. She works regular weekday hours and it doesn't affect her work, but if she didn't, it would look fishy that her migraines "only come on Sundays." It would be really hard to prove abuse unless you see the person going out and golfing or something when they are supposed to be out with a chronic illness.
I'm not sure if the OP is the nurse manager. If she is only a coworker, she is not entitled to any information about the absences. What the coworkers have been told is not necessarily the exact thing that is going on. Only the supervisor and HR should have any information about the nature of the FMLA and how it may be used. HIPPA protects the employee on FMLA as well. If she is the manager, then she should contact HR to make sure whatever she is doing is legal. Finding an unrelated issue to terminate them is unfair I think, unless there is PROOF that they are abusing the FMLA.
I never suggested that anyone find "an unrelated issue to terminate" the employee(s) in question. That is not necessary. What IS necessary is to ensure that the employees are not abusing FMLA. If proof exists that they are, disciplinary action is not only warranted, it is NECESSARY to protect the other staff members and promote adequate staffing of the unit.
The possibility of termination was not raised by me.
There are conflicting reports that somehow these nurses are exempt from the normal discipline process?? Any help/tips on this situation would be greatly appreciated!
Thanks!
FMLA does not exempt an employee from the normal disciplinary process. An employee taking FMLA must adhere to the hospital's policy and procedure regarding its use. Intermittant use of FMLA is allowed by federal law, and your institution should have a policy in place spelling out how intermittant days are to be taken. For example: Appointment days and scheduled days of rest should be requested in advance. Unscheduled sick days related to the condition for which FMLA was granted may require a doctor's note. Sick days unrelated to the FMLA are not covered by the leave, and must be taken as regular sick call-outs. If these employees are not following policies and procedures such as these that are spelled out in your HR manual, then they are subject to disciplinary action, just like any other employee.
One more thing to my previous reply. It may seem unfair that they can call out whenever they wish, but you don't know really what they have to deal with. I would have much preferred to be a normal employee than to call out and deal with the other personal issues that I had. While it may feel unfair to you now, if you ever need FMLA, you will be very thankful for its existance.
I quite agree with this poster. FMLA must be approved by a physician...and it's actually pretty hard to get them to sign one off. So watch what you do in this case. If management presses too hard, they could be bordering on stiff penalties. Also, the employer cannot ask specifically what the problem is. It's basically none of their business...as long as FMLA is in place.
Also, the employer cannot ask specifically what the problem is. It's basically none of their business...as long as FMLA is in place.
LPN 90
I'll have to do some research to see if the law has changed since my days in management and since I took my own FML. However, the forms used by my institution required information from the physician including diagnosis, anticipated length of treatment, anticipated date of release from FML.
I do not believe it is improper for the employer to inquire as to the problem. While I agree that detailed medical records are none of the employer's business, it IS necessary for the employer to have SOME information to allow for staffing, and to plan for the accomodations that the employee is requesting.
The FMLA includes provisions for "notice and certification" which allow the employer to; 1.) Require physician certification of the health condition for which one is requesting FML. 2.) Require a second medical opinion of the need for FML (at employer's expense). 3.) Require periodic updates during leave regarding employee's satus and intent to return to work.
I believe this allows the employer to inquire about the employee's condition.
My past professional job was as an H.R. Coordinator. I managed a shift of about 140 employees. There were a few that were covered by FMLA on my shift, and many for the whole company overall. Whether it is taken in large chunks of time, a day here a day there, or is scheduled in advance, has largely to do with the medical condition of the person or the persons family.
Here are some examples:
I had one young man who's FMLA covered taking his elderly parents to Dr's appts. - These were scheduled in advance.
There was one women who's FMLA covered her depression - Her's was on a day by day basis, but largely she used it on most of the night shifts (we worked a rotating day/night schedule), and a lot of weekends - I found hers to be a little fishy when I could predict what days she would call in based on looking at the past few months.
Another women who's FMLA covered some other medical condition that I can't remember right now - She was also intermitent but very rarley called in.
And there were a few who, for various medical reasons, would use it in large chunks - A week here, 2 weeks there.
FMLA has to be approved by the PCP, lots of paperwork has to be filled out before hand. The PCP can specify the time frame, as needed, for a specific week, for Dr's appts, etc. When the person calls in they have to state whether or not it is FMLA related, if it is not FMLA related it is NOT covered by FMLA laws. Once the paperwork has expired it has to be refilled out and resigned by the PCP. The law provides so many hours per year for FMLA, after those hours are used up it's up to the company to let the employee know that absences will be recorded as an absence, not FMLA leave. And once those hours are gone - they're gone! There is no more job security for absences.
FMLA is not difficult to get but it does require effort on the part of the employee, and a PCP who wants to fill out all those papers. There is a fair amount of people who abuse it but, don't think it goes un-noticed by the Powers That Be. It is also a life saver to those who do have chronic illnesses, like lupus, asthma, arthritis, depression, etc. To those people it can mean the difference between employment and termination.
For every law that is in place to help someone there will be someone who abuses it. It will catch up with them. I've personally seen it dozens of times. If someone is the type of person to abuse the law, they are not a very good employee anyway. And it'll come out one way or another.
You could talk to someone about it but don't expect a lot of information because of privacy laws. You may however ask about the company's FMLA policy and use a lot of hypotheticals and "what if's" to gather information about it. But, pretty much, you're saying something about it is not going to accomplish anything.
...something to consider. If a person calls in ill predictably on a day, say, sunday, maybe what he did the night before contributed to his illness? Was it too much wine? A food they know bothers them? An environment of smoke or other allergen? Was it a scheduled visit to a used bookstore where the asthma acts up? Was it stress-induced from a "required" family visit (most of us can identify with that!)...like maybe visitation with children requiring interaction with an ex? Or Sat. dinner with the folks where there's always a "fight"? Maybe some things can be avoided...
I know if I have to take a certain med for one condition I have that I won't be able to do ANYTHING let alone work the next 12-24 hours. If the barometric pressure changes significantly, I am prepared to ward off a migraine, and most of the time I am successful and can work. Sometimes I just can't.
...there has to be a balance with who has information of a co-worker's health situation. Obviously management should know for FMLA but do I as a co-worker need to know every detail? Do my co-workers need to know whether it is a migraine or my colitis or etc? For the record, I am not FMLA as I am part-time. I do make up any nights missed the following unscheduled days...I work it out with my NM.
There's no easy answers, however if someone is proven to be abusing the system, they should be penalized.
FMLA is a wonderful thing for the people who need to use it. Really. I think its great. My mom needed to use it when taking care of sick parents and my dad.
Now were I work, we have two staff members who have legitimate medical excuses...diabetes and asthma. Often times the need to call off for these conditions. Thats all okay, but when its every weekend they are scheduled or a day when they work with a certain other aid or when the say....I think I'm feeling a FMLA day? I dont' think so. The hard part about it is....how do you prove it? I think this is what the OP was asking.
but when its every weekend they are scheduled or a day when they work with a certain other aid or when the say....I think I'm feeling a FMLA day? I dont' think so. The hard part about it is....how do you prove it? I think this is what the OP was asking.
There really is no way to "prove" it. Unless it's something like FMLA for back pain and then the employee is seem moving heavy furniture or something like that. Other than that, it's covered by law.
The only thing that stops it is when the PCP's paperwork expires and/or the yearly hours are used up. But, if someone is in the habit of calling in on a regular basis it doesn't usually stop when the FMLA hours are used up. It usually continues until they are disciplined for attendance issues and, even after that, it may not stop until they are terminated.
I do understand the importance of FMLA as my sister required surgery and needed to use it during her recovery process, and yes, it is important to have.
The problem is, what to do about persons suspected to be abusing the system? I believe management can and should require doctor's notes for patterns of potential abuse such in this case.
I do understand the importance of FMLA as my sister required surgery and needed to use it during her recovery process, and yes, it is important to have.
The problem is, what to do about persons suspected to be abusing the system? I believe management can and should require doctor's notes for patterns of potential abuse such in this case.
There's two issues with that:
#1 - They already have the Dr's note - the filled out FMLA paperwork.
#2 - Requiring something additional (dr's notes each time) from one employee and not every employee (the ones not abusing the system) could be seen as harrassment. Which could mean a serious lawsuit.
Ok, I did a bit of checking. This is what I found.
For employee health related FMLA issues, there are basically two types of FMLA.
1) Chronic - in which conditions like asthma/migraines/fibro etc may be covered and allow the employee to take FMLA time intermittently with no notice.
2) Acute - an employee has surgery etc and will need a specified time for recovery.
The employee files certification paperwork in each case. BUT, they are required to meet their burden of complying with their care/treatment plan from what I understand.
(So, I'm wondering (for example) if an employee that has chronic asthma and is a smoker may be negating their plan of care if they continue to smoke while they have asthma and attempt to claim intermittent FMLA? An interesting legal idea, anyway.)
Apparently, businesses can demand recertification as frequently as every 30 days at the employees expense. So it would seem that businesses could demand more legally of their workers if they wanted to. In addition, if someone was seen out shopping by a coworker on a day that they are taking intermittent FMLA, (and this is extreme but apparently legal providing there is strong evidence), businesses can demand recertification daily for each day of absence. But like the above poster stated, it would be a harrassment suit otherwise.
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Jolie, BSN
6,375 Posts
I never suggested that anyone find "an unrelated issue to terminate" the employee(s) in question. That is not necessary. What IS necessary is to ensure that the employees are not abusing FMLA. If proof exists that they are, disciplinary action is not only warranted, it is NECESSARY to protect the other staff members and promote adequate staffing of the unit.
The possibility of termination was not raised by me.