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Temporary disability

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I’m in HR. If my doctor says he wants me to go out on temporary disability starting tomorrow Aug 19, 2009 due to medical issues concerning loss of sleep, possible narcolepsy or some other sleep disorder. Then I inform my workplace of this news. Can they fire me at that point due to my lateness to work due to lack of sleep?

That depends. This is an interesting problem, and we do not really have enough information to make a final decision. But, we can identify the issues involved. This question reflects the truth that employees often do not request FMLA leave until it is too late. Very simply put, FMLA does not excuse poor performance. It does not provide any grace period when the employee is at work, but not held to the usual performance standards. An employee who is on FMLA leave is not at work. An employee who is at work, is not permitted to do slipshod work or have other performance issues (like tardiness) and use FMLA to excuse them.

First of all, the three issues here are FMLA leave, tardiness and reasonable accommodation. As you probably know, FMLA entitles a qualified employee to take up to 12 weeks of unpaid job-protected leave during a 12 month period. FMLA protects an employees job — temporary disability often does not.

Employees normally have until 2 days after an absence to request that it be counted as FMLA. And, FMLA can be used sporadically or intermittently in some cases, including sleep disorders or narcolepsy. Suppose this employee was 2 hours late on Aug. 18, and her doctor recommended placing her on FMLA full-time beginning Aug. 19. The employee could request FMLA leave for the two hours on Aug. 18. Basically, what she is doing is beginning her FMLA leave one day earlier. She would still have to provide a physicians certification that this is a serious helath condition that requires time off. In this case, the first day of leave would be intermittent.

A 2008 change to the FMLA regulations require employees to follow the usual reporting procedures for FMLA absences. So if the employee was supposed to call to say that she would be late on Aug 18, and did not, that may be a problem. This requirement is waived in some cases, such as when an employee has a heart attack or stroke on the way to work. It is not clear if this would be one of those cases.

The employer would likely argue that tardiness is a separate issue. An employer can legally take any action against a worker on FMLA, that they would have taken, if the worker was not on FMLA. The employer will probably point out that many people with Narcolepsy or sleep disorders still manage to come to work on time. So the two may not be related. Again, being on FMLA before or after a date doesn\\\’t excuse poor performance. Employers have every right to discipline or even fire an employee on FMLA, as long as they are not being fired BECAUSE they are on FMLA. Suppose Ted likes to party and frequently comes in late without calling. He has been warned in the past that if he is tardy one more time, he will be terminated. Ted is scheduled to start FMLA for heart surgery on Friday. On Thursday, Ted comes in late without calling, because he has a hangover. The employer would be completely justified in firing Ted.

There is also an issue of whether the emloyer would be obligated to permit the employee to be tardy as a reasonable accommodation for a disability. We do not really have enough information to determine if this employee has a disability under the EEOC definition, which is pretty strict. If she does, and she asked the employer for leeway regarding reporting time in the past, that may qualify as a reasonable accommodation under ADA, the Americans with Disabilities Act. The employee does not have to use the words \\\”reasonable accommodation\\\” in order for the ADA to apply. However, the employer has the right to require medical certification of the disability.