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FMLA harassment


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#1 florence123

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Posted 28 September 2009 - 11:26 AM

I am a supervisor in our company. I have an employee who went on FMLA for medical reasons. She was out for six weeks on short term disability (and FMLA) returned for 1 1/2 weeks and went back on FMLA. Prior to her going on FMLA, she nor my human resources department would give me an approximate date of her return. I sent a text to her requesting an approximate date of her return. I did not at any time request for her to come back early or threaten her job. When she went back on FMLA the second time, I asked could she take it three days later as another employee had scheduled vacation during the next three days, and she said no. I thanked her for her work and asked if she knew when she would be returning. (I never received a response to any text sent to her). She has now gotten a lawyer for harassment while she was on FMLA...What are my rights as far as any contact while she was out on FMLA?

#2 terminatedone

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Posted 29 September 2009 - 12:19 AM

i think this is harrassment. you need to talk to your hr director!

#3 Fallen

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Posted 29 September 2009 - 03:46 AM

She wouldn't need to give a supervisor info, and she wouldn't necessarily have to give anyone an approx. date if she didn't know how long it would be.


"I sent a text to her requesting an approximate date of her return."

Is this your job?  I should think it would be up to HR to address this.


"When she went back on FMLA the second time, I asked could she take it three days later as another employee had scheduled vacation during the next three days...."

Obviously, you think FMLA is an optional/elective thing.  While you don't say what information you had about the underlying issue here requiring FMLA, I presume you knew it didn't involve a serious health condition?

"She has now gotten a lawyer for harassment while she was on FMLA..."

You haven't described "harassment" as such, no.  That said, we only know what you tell us here.

"What are my rights as far as any contact while she was out on FMLA? "

Uhm, that's a discussion you need to have with your HR folks.  Not sure why there was no guidance for supervisors in this regard on the issue of FMLA, but I gather there wasn't.


I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#4 florence123

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Posted 29 September 2009 - 04:20 AM

In response to Fallen's answers:


In reading FMLA section 29 CFR 825.302 part d and 825.303 part c,  an employee should comply with the employer's policy in regard to submitting leave requests. Our policy is that all employees must submit a leave request to their supervisor for a minimum of two weeks in advance. This request states the start date of their leave and stop date (or an approximate date if not known). Also, there was an approximate end date on her FMLA form that she signed with the human resources department..NO leave request was ever submitted to me, her supervisor, for any of the time she was off...Which led to my request of when she would possibly return to work. I was notified by her (not in writing) two days prior to her planned elective back surgery without an approximate date of return. This was not an emergency procedure. The date was scheduled around family members.


Unfortunately, it is my job to provide staffing for my department...and not HR. We are a small office. So it was necessary to try to determine an approximate date of return as i had to hire a termporary employee.


I have received very little, if any, help from my HR director. She basically told me that i had no right to know when the employee would return and I had no right to talk to her and ask her when she would possibly return.


I hope this clarifies it a little more.


 



#5 Fallen

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Posted 29 September 2009 - 04:43 AM

"Our policy is that all employees must submit a leave request to their supervisor for a minimum of two weeks in advance."

That's a stupid policy in general even if it fits the current situation, since the law doesn't require it and you cannot assume that the request is going to involve, say, the birth or adoption of a child but a serious health condition of the worker or child-spouse of the worker that has nothing to do with electives/choices.

If your company's policy is to have supervisors handling this stuff vs. HR, that's also a mistake.


"Unfortunately, it is my job to provide staffing for my department...and not HR."

But HR should be the one coordinating things and being point of contact ... in part to avoid situations like this.


"I have received very little, if any, help from my HR director."

Shocker.  :)


"She basically told me that i had no right to know when the employee would return and I had no right to talk to her and ask her when she would possibly return. "

And I trust you pointed out the policy to her.  In any event, sure, you may wind up being the fall-guy here, but also true is that someone needs to address how the company handles FMLA requests more clearly.  In a perfect world, that would mean management pointing the finger at the HR director and asking why policies and procedures are the way they are.


I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#6 florence123

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Posted 29 September 2009 - 04:48 AM

Also...to add a little more information. When she returned from her original FMLA request, she was instructed to notify me of work she completed as there were MANY deficiencies noted while she was gone. She subsequently turned in her resignation as she felt she could not comply with that request. She gave a 4 week notice and I allowed her that time frame in order to continue her health insurance coverage for an additional four weeks..and hopefully correct some of the previousl deficiencies. The FMLA request came 2 weeks into the four week notice...



#7 Fallen

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Posted 29 September 2009 - 05:12 AM

"She subsequently turned in her resignation as she felt she could not comply with that request."

So now I guess she's regretted that decision to quit.  :)  In any event, as I said in the first response, doesn't sound like "harassment" to me.


"She gave a 4 week notice and I allowed her that time frame in order to continue her health insurance coverage for an additional four weeks.."

Under COBRA, she'll be free to elect to continue her coverage a lot longer than four weeks (but it was nice of you to allow her to work out the notice -- you could have accepted it effective immediately, though of course then she'd be filing an unemployment benefits claim for three weeks' worth of time (states tend to have a one-week elimination period)).


 


I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)





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