1. Is Victoria covered by FMLA?
2. How should the supervisor have handled Victoria's requests in the past? In the future?
3. Can the supervisor discipline her for excessive absenteeism? Why? Why NOT?
4. What should the supervisor do now?
Victoria has been a sales agent for a telemarketing firm in California for four years. The firm employees 240 people who take reservations for a national hotel chain when customers call a toll free telephone number. Approximately two years ago Victoria voluntarily moved to a night shift position.
Shortly after her move she began complaining to the night -shift manager that her immediate supervisor was picking on her. In particular Victoria alleged that her supervisor was constantly nagging her about taking breaks that were too long. She also said that the supervisor was deliberately scheduling her breaks at different times than when her freinds had theirs. Eventually Victoria's complaining led the night manager to talk to the supervisor and those complaints seemed to subside. However, a new problem with Victoria has recently developed.
During her employment Victoria has regularly used sick leave. The company policy provides for employees to receive sick leave only as it is accrued, which means that an employee earns one day of sick leave for each month of employment. Because Victoria has consistently taken one day of sick leave each month, she almost never has accumulated any carry-over sick leave time. Therefore, she has been forced to request unpaid medical leaves of absence whenever she has had the flu or some other health problem. In the past these leaves have been granted to Victoria without too many questions beingasked.
Recently, Victoria requested an unpaid medical leave for the sixth time this year based on continued respiratory problems. The supervisor and Manager finally brought this to the attention of the Director because they felt it was becoming excessive. The Director granted Victoria's request, but told Victoria that her medical leaves were becoming excessive and more leaves would result in formal documentation which could lead to termination on the basis of excessive absenteeism. The District reinforced that her absenteeism was in fact impacting her, as well as the whole groups'', overall performance. She immediately snapped back that her claims were legal and she was entitled to the time off due to her long-term respiratory problems which she states is covered under the Family and Medical Leave Act.
The information below should help you get started on your questions.
As you may already know, employers covered by the FMLA (Family and Medical Leave Act)must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
1) for the birth and care of the newborn child of the employee;
2) for placement with the employee of a son or daughter for adoption or foster care;
3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
4) to take medical leave when the employee is unable to work because of a serious health condition (which applies to this particular scenario). For help in deciding whether or not Victoria's condition qualifies, see this website: http://www.dol.gov/elaws/esa/fmla/shc.asp
This is the basic rule. Let's look at it more closely. Note that the FMLA covers an employer who engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. So, knowing that definition, the FMLA probably applies to Victoria's employer, who employs 240 workers year-round.
So, our next step is to determine whether or not the FMLA applies to Victoria since we know her employer is subject to it. The law provides that an "eligible employee'' is an employee of a covered ...
Family and Medical Leave Act implications are noted.