Sick Leave Gone Haywire

April 10, 2016

Topics: Disability and Leave Obligations

We know we’re all busy, but HR managers really need to train their managers on human resources basics. Take this sick-leave situation which demonstrates the type of scenarios we’ve had to deal with regularly—a real comedy of errors when they are all strung together.

First, a manager fails to report an employee, who we will call Janice, calling in sick day after day for a week.  In the manager’s mind, the employee had banked sick days so what did it matter?  It was their slow time; her work was easily covered.  The manager felt she was entitled to the days off.  Well, she did have four banked sick days.  But she was out 5 days.  Since HR was not apprised of the absence, she was paid for the week and sick leave was not deducted from her bank.

The following week, the employee’s husband left a message for the manager saying the employee had been admitted to the hospital.  The manager emailed HR that Janice would be out “a while.”  Several days later, the very busy HR manager sent an email back saying “what’s ‘a while’?”  Of course, the manager was too tied up to get back to HR and HR was on to other projects.

Two weeks later, HR got a phone call from the husband asking about disability paperwork for his wife’s leave.  HR stopped herself from saying “what leave?” and got all the information and sent paperwork related to the federal Family and Medical Leave Act (FMLA) and disability forms required by their state—and called the employee’s manager to her office.  The manager made excuses; explained he’d been busy; and his department was running smoothly—if a little overburdened.

No one sent a letter to the employee saying:  “You are conditionally approved for 12-weeks of FMLA leave, should your doctor indicate that you need that much leave.  Your leave started on x date and will expire on y date.  Should you need additional leave time, please contact me.”  In fact, there was no communication about an expected return to work date or clarity as to when her leave started—on the first day she was out sick? The day she went into the hospital?  And, the employee never returned the Health Care Provider Certification—and HR never followed up.  HR, however, took Janice off payroll and processed the returned disability paperwork.  Oddly, HR didn’t realize that the disability forms expected return-to-work date was 6 months hence.

Fast-forward five months:  we get a call from the CFO.  The HR manager is on her own maternity leave and the overworked CFO is trying to identify the various employees on disability leave.  Of course, what’s the question for me?  Can’t we fire Janice?  She’s been out five months; we’re still carrying her on her health insurance and we have no idea if, let alone when, Janice may be coming back to work.

We take a deep breath and patiently explain that, no, you can’t let Janice go—not yet, at least.  The company doesn’t know if, or when, Janice is coming back because no one took the steps necessary to communicate with her during her leave.  When she finished her FMLA leave entitlement, and moved into what was likely disability-related leave under the Americans with Disabilities Act (ADA) and related state law, no one determined whether additional leave could be provided as a reasonable accommodation—and how much more leave was needed.  Since these facts were not gathered, no analysis was done as to whether the additional leave was reasonable.  I suggested that someone pick up the phone, call Janice and find out how she was doing and what her plans were.

When someone called Janice, they found out that she had gotten a new job two weeks ago.   She thought that the company only granted her 12 weeks of leave and that when she could not come back at the 12-week mark, she was out of a job.  Apparently, her manager had called her when she’d been out ten weeks or so to find out how she was doing and to confirm that she’d be back at the end of her 12 weeks of leave.  When Janice advised her manager that she was pretty sure the doctor wouldn’t let her come back in two weeks, the manager had said that he was really sorry but he couldn’t hold her position any longer and he wished her all the best.  Janice thought she was let go because she couldn’t come back to work.  But, she understood.  She’d been with the company a long time and knew it must have been a problem that she’d been out so long.  So, luckily for the company, she took the message in stride, got better, and found herself another job.  However, this scenario was a lawsuit just waiting to happen.

The moral of the story is—train your managers.  Train your managers, and keep in good communication with employees on leave.