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Suggest FMLA if worker says illness causing work problems

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in Employee Benefits Program,FMLA Guidelines,Human Resources

An employee who has been performing well and then seems to act out of character may be suffering from a disability or a serious health condition. But suggesting a disability when there isn’t one is NOT a good idea, since that can lead to a “regarded as disabled” lawsuit.

The best approach is to stick with holding the employee to the work rules, and suggesting he or she take FMLA leave if the problems are medical.

Then, continue with discipline until the employee completes the FMLA paperwork or asks for an accommodation.
If the employee does neither, you can and should proceed as if there is no underlying problem and levy any discipline your policies allow, up to and including termination.

Recent case: Herbert Grubb was a flight instructor for Southwest Airlines. Over the years, he was often counseled on attendance. Then he started nodding off at work and coming in disheveled, dirty and generally unfit for company business.

He was warned to use deodorant, wear clean clothes and not sleep at work. However, he was observed numerous times sleeping and even snoring during flight-simulator classes (when he should have been helping students learn to fly).

Finally, when Grubb was counseled again and warned that he faced discharge, he said he was looking for a sleep clinic. The airline then suggested he apply for FMLA leave and seek help from the employee assistance program.

Grubb took the FMLA forms, but never provided any further information. He was then fired for sleeping
on the job and other policy violations.

Grubb filed an FMLA lawsuit, claiming his rights had been violated. But the court tossed out the case since the airline had done all it could to help him get treatment. (Grubb v. Southwest Airlines, No. 3:05-CV-1934, ND TX, 2007)

Bottom line: Enforce the rules, but allow for illness. If the employee doesn’t cooperate, it’s his or her loss.

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