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Our company has 150+ employees all over the US. Here in Texas we only have 12 employees and this is corporate. I have an employee that has been out sick since November 8, 2010. He has had surgery, but has called in or emailed daily and his manager told him not to worry he would be paid and to take as much time as needed. However, it is going on 3 months and he has taken advantage and I have been instructed to fix this issue by the CEO. Do we fall under the FMLA?

FMLA only covers a business with 50 employees within 75 miles. (Different rules apply for schools and governments, but not to your company.) That is 50 employees within 75 miles of the sick employee's usual work location. If the sick employee worked in Ames, Iowa and you do not have 50 employees within 75 miles of that location, the employee is not covered by FMLA.

It sounds like your company is not covered by FMLA. Several states have family leave laws that would allow this employee to take time off after surgery. Since you do not say which state this employee is in, we cannot address that issue.

Many conditions require 8 to 12 weeks off after surgery, so it is possible that this employee is not taking advantage of your generous company policy. However, it is still not fair to the company for you to have an employee who is doing no work, but is on the payroll.

It sounds like you have been paying this employee. This is an incredibly generous policy, and perhaps an unwise one. FMLA is unpaid leave, as are most state family leaves. Less than 5% of employers would provide such extensive paid leave.

If the employee has a permanent impairment, he may be entitled to unpaid time off under ADA, the Americans with Disabilities Act. Even though you are not covered under FMLA, you are covered under ADA. Unpaid time off is often a reasonable accommodation under ADA. Because you have given this employee so much time off, you have demonstrated that it is reasonable for your company to do so.

If the employee is not covered by ADA, our recommendation is that you contact this employee by certified letter and let him know that if he does not return to work by a certain date, his employment will be terminated. Tell him that he needs a doctors fitness for duty release to return. Also let him know that if he is terminated, he can reapply for any open positions once he is fully recovered.

Meanwhile, you need to clarify the medical leave policy at your company. You have just set the precedent of allowing employees to take 10 or more weeks of paid leave for a health condition. If you do not offer the same benefit to employees of another sex, race, color, etc. then you are guilty of illegal discrimination in working conditions. In addition, the federal PDA or Pregnancy Discrimination Act requires that an employer provide the same benefit to women for pregnancy and childbirth, as the company offers for a medical condition. Therefore, you must now offer 10 weeks of paid maternity leave. While this manager's generosity is to be commended, by allowing such extended paid leave he has put the company in a bad position. But it may not be his fault — there should have been a written policy on medical leave, and all managers should have been trained on the topic.

You can and should implement a new policy on medical leave. Even though you are not covered by FMLA, you could allow 8 to 12 weeks of unpaid leave. This new policy should be formalized in writing, perhaps in the employee handbook or a memo signed by each employee, and managers should be trained in its implementation. In addition, they should be instructed to contact HR anytime an employee is absent more than one week.

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This entry was posted on Thursday, January 20th, 2011 at 7:55 am and is filed under
Attendance Management, Human Resources Management.
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