Human Resource Blog

If the employee has submitted all the FMLA paperwork but the company has not yet made a decision to approve or deny the unpaid FMLA leave, it is probably not a good idea to discipline the employee for the absence. That would be punishing the employee for the companys own lack of promptness.

Under FMLA, the federal Family and Medical Leave Act, employees are entitled to take up to 12 weeks of unpaid, job-protected leave for a variety of reasons including illness and baby bonding. Employees on FMLA cannot be disciplined for taking the time off, under federal law. In fact, an employer cannot take any negative action against the employee for taking time off under FMLA.

It is possible that if the employee has already been disciplined, once FMLA is approved an apology could be issued to the employee and all mention of the disciplinary action could be removed from the personnel file. But it would be far better for the employer to wait until FMLA is denied (if it is) and take disciplinary action then.

If the employee has not completed the paperwork for FMLA, then the employer is free to handle this as he or she would any other unapproved absence.

Under the current regulations, an employee must usually request that an absence be considered FMLA within 2 days after returning to work. Some employers may be more flexible, but that is the minimum the regulations require. Suppose Lee was absent on August 1. On August 5, she returned to work. She would have until August 7 to request that the absence be considered FMLA. She cannot submit paperwork on August 27, after additional absences, claiming that the August 1 thru 4 absence was FMLA.

It was never the intention of FMLA that employees be able to use it retroactively to justify previous episodes of absence. FMLA can be used on a sporadic, unscheduled basis, however, generally the FMLA (not the individual absence) must be approved in advance.

These regulations will change on January 1, 2009.

Employees who have additional questions regarding FMLA can post them on our sister site at www.laborlawtalk.com. Human Resource professionals with questions are welcome to post them on this site.

As your title points out, since this is an hourly employee there are really two problems here, not one: tardiness and overtime.

First, you need to decide how much of a problem the tardiness actually is. This will depend upon your work situation. If Sara is the only clerk scheduled in a retail store, and she comes in 10 or 15 minutes late, that means the store does not open on time, which is a huge problem. If Sara is an office worker, her tardiness may not be a problem at all.

Second, you need to have a frank, private one-on-one discussion with the employee. State the problem in a non-threatening way, and point out the results. Do not say: What is the matter with you, that you are always late? Instead, say, Sara, I have noticed that you are often late coming in. Can you help me understand why? (It may be, for example, that Sara is dependent upon unreliable public transportation, or that her daycare center does not open early enough for her to be on time.)

Together, the two of you need to agree on a solution. If the tardiness is no big deal, and Sara has a valid reason, you may want to change her start time from 8:00 am to 8:15 am or even 8:30 am, and change her scheduled quitting time, as well. (Do NOT do this without having a conversation about it with Sara. That creates the impression that she can do whatever she likes, and you will adjust to it.)

If the tardiness is a significant problem for your organization, you need to secure an agreement to make whatever changes are necessary to eliminate it, from Sara. (She may not even realize that being tardy is a problem. Many young people have been raised to believe that being late is perfectly acceptable, as long as they phone to say they are on their way.) Set an objective standard for acceptable tardiness, such as 0 minutes late, 5 minutes late or 7 minutes late. (Make sure it is the same standard you are using for other employees.) Let Sara know that if she arrives later, she will be written up. After three write ups, as much as you hate to, you will have to let her go.

You can address the overtime situation in the same conversation. It is quite possible that Sara believes she is doing you a favor by staying to complete all the work. Let her know that you need for her to leave on time, and that she will be disciplined for unauthorized overtime. Also let her know that she is still expected to get all of her work done. It is amazing how efficient an employee can become, when the alternative is unemployment.

Be sure to let Sara know at the beginning and end of this conversation how much you appreciate her efforts, and what a good job she is doing. Follow up, either with praise when Sara is on time or discipline when she is tardy, and this will solve the problem.

In many cases this would be permissible, but it is impossible for us to comment on your particular case, without looking at your collective bargaining agreement.

Collective bargaining agreements are contracts. Like any other contract, if you have concerns about the terms and conditions, you should consult an attorney — preferably one specializing in employment law.

However, most collective bargaining agreements don\’t specifically exclude the use of time clocks in the workplace.

No, probably not, assuming that the FMLA is eventually approved and that the termination is for the FMLA absence.

Suppose Bob has a heart attack on the way to work Wednesday morning. He is not physically able to complete the FMLA paperwork for 4 days. Usually, the employer cannot terminate Bob because his absence precedes the approval of his FMLA. It is the nature of illness, that it is not always predictable. Assuming that the employee genuinely has a serious health condition, and that the FMLA will eventually be approved, it need not be approved in advance.

In most cases, employees have until 2 days after they return to work, to request leave under FMLA. And in some cases, they have even longer. In fact, FMLA leave is often granted retroactively, although employees are urged to complete the paperwork as soon as possible.

An employer can take any action against an employee on FMLA leave that the employer would take anyway, if the employee was at work. So an employee can be laid off or fired for a reason unrelated to FMLA. But they cannot be fired due to the absence. Under new rules for 2008, employees must follow the usual reporting procedures to call in when they are absent.

Normally FMLA papers contain an effective date. Suppose Bob has his heart attack on November 1. After Bob\’s heart attack, he completes FMLA paperwork requesting up to 12 weeks leave beginning November 1. Even if the paperwork is not approved until November 21, FMLA is granted retroactively from November 1.

However, suppose Bob has an ulcer and not a heart attack. He also missed work on October 13, 15 and 19. Because that period was not covered under Bob\’s FMLA request, he could be disciplined for those absences.