11.13.14

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

4

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.

5

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.

6

HYPOTHETICAL TWO:

Sammy Shipper and the Unexplained Seizures

7

• 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.

HYPOTHETICAL TWO

8

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.

9

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.

10

HYPOTHETICAL THREE:

Emily's lingering lumbago

11

• 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.

HYPOTHETICAL THREE

12

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.

13

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.