Employment Law

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Lawyer's Assistant: The Employment Lawyer's require payment for their services. It's way less expensive on JustAnswer than face-to-face would cost.

I need to chat with someone that is the authority on FMLA issues. What is your recommendations?

Lawyer's Assistant: Have you documented this or discussed it with HR?

"this" meaning ??

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Well let me clarify a bit. I just went through an allegation brought upon by one employee that has FMLA status

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

My main confusion is on the interpretation of the FMLA laws on what we can and can not do or say in performance evalution

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Customer reply replied 11 months ago
I was told that it is illegal for me to use the word "illness" in a performance review write up regardless how I write it. Is this true?
Customer reply replied 11 months ago
I used the word "illness" to describe and try to explain why the individual has unpredictable work schedules. But I have never mentioned anything else negatively on this point. The whole point of me mentioning this is to ask the individual do not take on tasks that is going to span beyond one day. i.e. Take what you can finish today and tomorrow is another day. Because we can't give the individual any time sensitive projects that have deadline because we never know if this individual is going to show up on-time the next day.
Answered in 12 minutes by:
8/22/2017
Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 125,957
Experience: 20+ Years of Employment Law Experience
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
It is not "illegal" in general to use the word "illness", but in performance reviews or any employment decisions, referring to any medical condition of an employee or referring use of any legally protected leave will be grounds to open the employer up to discrimination claims under either FMLA or the Americans with Disabilities Act.
An employer cannot use the use of FMLA leave or protection under the ADA or refer to any use of such in any type of employment determination about the employee, which includes performance evaluations. So in that regard, an employer should not in any way reference anything regarding any illness or disability or use of FMLA or any reasonable accommodation an employee has in any type of employment action or that would be basis for a discrimination/retaliation claim.
As far as the work schedule issues, if the employee has a disability or medical issues, you should not mention anything about it in your evaluation. If you think they should restrict themselves to projects that can be completed in the same day, you can say that without qualifying why specifically, but to refer to their attendance due to an FMLA condition or ADA accommodation can put the employer in a position of being sued for violations of those acts.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 11 months ago
We have a online system that we use and one of the features is the ability to be able to send back and forth between the supervisor and the employee. So the particular question I have is that during this back and forth process, the word "illness" was mentioned but subsequently removed upon employee's request. i.e. The final and the official version of the performance evaluation was clean of all things. But the employee brought up the allegation anyway and reference the earlier version which did contained the word "illness". I was told as long as I have typed in the word "illness" even just once during this back and forth process. It counts. Is this true?
Customer reply replied 11 months ago
Sorry I can't call and I am at work and there are others around.

Thank you for your reply.

You should not, again, refer to any illness or physical condition of an employee and you were told correctly that even if you mentioned it one time in the exchange, that could give rise to a discrimination/retaliation claim because they can claim all subsequent conversations were based on their illness/disability.

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Customer reply replied 11 months ago
Thanks for the inform. I like to clarify that the allegation is just about 1 sentence that contains the word "illness" in the exchange and it was removed immediately and not in the final version of the PE. The rest of the write up is no problem. The allegation is based solely on this 1 sentence during the exchange.... Is there still grounds. What chance do I have if I filed an appeal to contest.... Also can they say based on this 1 sentence I may be subject to immediate dismissal? I felt that the punishment does not meet the crime. So should have been a reasonable sentence based on this one sentence mistake during the exchange?

Thank you for your reply.

Even if you used it in one writing, it can still be cause for a claim of discrimination/retaliation, the employer is correct, because just removing the word does not remove the circumstantial evidence that any action taken after you used that word was still based on that illness/disability.

As far as the discipline by the employer, this is up to the sole discretion of the employer and while you may feel the discipline is too harsh, the employer has discretion in this situation as they must show they took any action they believed necessary to cure any allegations of violations of retaliation/discrimination. So, yes, dismissal is possible for this and if they dismiss you (unless you are under union contract or some government employment) your only recourse is fighting to get unemployment and proving you had no proper training in these matters by the employer and the one mention of the illness was not significant enough to warrant dismissal. However, the employer, as an at will employer, can still terminate you for this and you would have no recourse other than unemployment benefits against the employer.

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Customer reply replied 11 months ago
Sorry for my persistent. It was my bad to mention just the word "illness'. Let me clarify:1. The sentence is: Due to his illness, he has unpredictable work schedule.
2. What we are trying to say and accomplish is that from an operational stand point, "we need" this individual to not take on tasks that span more than one day.So what can I write to address point 2 without using the sentence? i.e. Can you just say, we need you to not take on ..... and without giving any reasons? Is that acceptable? You can see the deli-ma. The reality is that we have to make a lot of operational adjustment to accommodate for the individual. So how can I even talk about all the various operational adjustments (due to illness) without mentioning the word illness or sentence while in fact that everything we do is because of that.....
Thank you for your reply
Your sentence gives rise to a claim you are discriminating and retaliating against them based on their use of FMLA or their disability under the ADA. Even though you mentioned it only one time.
You can say that the individual needs to be assigned to tasks that can be completed within one day, that is ALL you can say as I said above. You cannot clarify WHY you are saying they need to be assigned tasks that can be completed within one day.
You cannot talk about adjustments in your records based on their illness, that can be deemed retaliatory or discriminatory. You need to pretend it does not exist basically and have to ignore it in your records. The HR department has records of their FMLA or need for accommodation under the ADA, that is the only records that can be kept on the issue.
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Customer reply replied 11 months ago
I really appreciated your answers. Few more questions:1. What if the iFMLA individual asks "why are you asking me to ....." or question the reason for the new assignments while other team members do not have to do.
2. It comes a point that the iFMLA individual can no longer fulfill the job requirement. What can we do?

Thank you for your reply.

1) Your response is that you are assigning them because that is where you need their assistance and abilities. That is the only explanation you have to give as an at will employer.

2) If you have issues about the employee doing the job, you have to take that up to HR and ask them to seek to provide some reasonable accommodations to the employee based on their needs. Most direct supervisors dislike people who are using FMLA or have such accommodations, but legally you have to deal with it and allow it until you can prove to HR that the employee cannot perform their job EVEN with such accommodations.

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Customer reply replied 11 months ago
The reality is this:1. The work environment requires all individuals to be at the office from 8-5
2. The iFMLA individual is allowed to not show up at work 3 days out of a 5 day week.You can imagine the burden this can have on everybody. It is not healthy and it is not a sustainable model from operational standpoint yet we have been operating this way for more than 5 years. Our HR is extremely risk adverse and always error on the side to support the iFMLA individual and basically penalize everyone else. It has not been a good situation to be in and we are sort of stuck. As a supervisor, I feel very bad like I have failed all the other good employees. I really want to be able to do something for them. Yet after 7 year with 6 years no problem and this individual brought on the allegation this year. Do you have any advice how we can get out of this hole.....
Customer reply replied 11 months ago
Even when the individual makes false claims especially when the dispute is between only two individuals so everything becomes he says she says. HR always take the words of the iFMLA individual because you have no way of proving that this individual is making a false accusation and twisted the words. This individual is totally abusing the situation to its max and nothing can be done about it.

Thank you for your reply

The reality is THIS, the FMLA and ADA protect employees from any discrimination or retaliation for availing themselves of their rights under those laws. Whether supervisors or co workers like it or not, someone with a qualifying condition is entitled to protection under FMLA and ADA and you nor the other employees or supervisors can do anything about it because you have to follow the law.

You have no choice but to honor the law and you do not have to like the law. HR is doing just what they are supposed to do in protecting the company from being sued for your retaliation/discrimination against the employee due to their illness/disability. Under FMLA, the employer can only make the employee provide medical certification from their doctor as to the need for FMLA, once they do that, you are right there is nothing that can be done about it unless you obtain evidence that their FMLA request is false or fraudulent and in that case HR can terminate them.

Until that happens, while you and others who have to work with this person do not like having to pick up their slack, legally you have to do so and have no way "out of this hole..."

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Customer reply replied 11 months ago
Almost done with my question:I totally understand and appreciate what you are saying. Am I correct to say that the FMLA and ADA law protects the "Employment Status" of the individual (i.e. Pay, Rank and etc all needs to remain the same) within the organization.But if the individual can no longer fulfill the job requirement for the original job position do we (the organization) have the right to transfer this individual from the original department to a different department and position (with same rank, pay and everything) that might not be impacted as much by the iFMLA condition.
Thank you for your reply.
If you can show that even with reasonable accommodations the employee cannot fulfill the duties of the job, they can be moved to a similar position at similar pay and stature that they can perform and that is up to HR to decide.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 125,957
Experience: 20+ Years of Employment Law Experience
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Law Educator, Esq. and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 11 months ago
Thank you very much for the advice. I am done with my questions for now. Just in case, will I be able to get back with you later IF I happen to have a few more questions? Thank you again. You have been most helpful....
Thank you for your reply.
You can always come here and use reply if it is directly related to the information provided above or you can post another question and ask for me by typing "For Law Educator Only..." in your new question.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
Ask Your Own Employment Law Question
Customer reply replied 11 months ago
Ok. I promise one last question. You mentioned the individual can be moved to a "similar position" but what if the individual can no longer perform under the similar position. Let me give you an exteme example, a bus driver lost a leg during business hours and is now under FMLA but he/she is no longer able to drive a bus. Do we have the right to switch him to a desk job or mail room just as an example. In my case, all the employees need to be in the office from 8-5 and since this individual can not be in the office during 8-5 so we will not be able to switch this individual to a 8-5 job which means it won't be a similar position.....Please advice (final question!)

Thank you for your reply.

That is up to HR to determine and move them to a similar position, not up to a supervisor to do anything other than request HR review the situation as it is up to them to seek the documentation and make the move if there is a bona fide job qualification the person cannot fulfill or a safety issue in the workplace is caused by their condition.

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