Dealing with older subordinate

[Thicke2013]

I have managed my department for a little under a year now. One of my subordinates is 20+ years my senior and is also more experienced in my field. That said, we have always had a mutual respect for one another. I respect his experience and advice and he respects my ability to learn and manage. Now the issue at hand.

 

 

First the background; He has severe RA (Rheumatoid Arthritis) and it affects him everyday. His knuckles look like he is allergic to bees and he just got stung by 10. I feel for him. He has some other minor health issues as well and I try to be very compassionate to these things.

 

 

Now the problem; I have caught him sleeping at his desk multiple times. I took him to lunch after catching him several times a few months ago and discussed it with him. I told him that he sits next to a busy walkway and I don't want the wrong person seeing him and him losing his job. I also told him that among other things, I was concerned about his reputation and what it could do to it if someone else caught him sleeping. I told him that if it was his medication then he could come to me and tell me and I would even let him go to his truck to take a short nap if needed to knock the edge off so he could continue his work. I let him know that he had to get up and walk around or go to the bathroom or get something to drink when he feels himself getting that tired. Anything but sit at your desk and doze off.

 

 

Fast forward to the past few weeks. I have caught him sleeping at his desk on four or more occasions. When I walk up he jumps and acts like he was reading an email or working on something. It's almost insulting to me that he thinks that I don't know he's sleeping. Thing is, I walked up behind him yesterday before lunch and it looks like he positioned himself so that he could doze off and his desk would hold him up. He was slightly leaning back in his chair and one arm propped up on his desk. One other detail that I believe is important is that we are extremely busy! I would understand more if he didn't have anything to do but he has a list of things that need to be done. Any advice on how to deal with this respectfully?

[preraph]

Tough one. I feel for the guy because I'm probably around his age and wish that I too could retire since my body is too worn out to want to work much. But these days people don't get to retire very often and must just keep working. There has to be some reason he is falling asleep. It's not normal to just drop off and fall asleep that easily. It probably is some meds he's on. You're going t have to talk to him and tell him he's sleeping all the time and if it's the meds, he needs to change his meds.

 

The only alternative I can see will be harder on him but it is to try to put him on a task where he is up standing some or walking around, in other words, keep him moving. If you have to, create a secondary position where he oversees others or the like and has to wander around and look in on people or have him on a training mission where he has training sessions with individuals.

 

If you just want him to be able to survive there and not fire him, by all means put him into an office where he won't get caught, then. Or ask him if there's better hours for him to work where he'd be more alert. Or ask him if he wants to work fewer hours. He probably can't afford to, but you never know. You could also give someone in the office the task of calling his desk every hour to wake him up.

 

If you feel he has to go, then talk to him about applying for disability. Not sure he can get it, but he can try and that would help sustain him. Really, it sounds like a medication problem to me. If it wasn't, he'd have been sleeping all along. It's even possible he's taking some med you're not supposed to ever have alcohol with (a friend of mine who has arthritis is on one like that) and he is not following instructions and this is the side effect.

 

He's got to open up to you about it so you can help him. If not, not sure I wouldn't call his wife on the quiet and ask her to intervene.

[Thicke2013]

Tough one. I feel for the guy because I'm probably around his age and wish that I too could retire since my body is too worn out to want to work much. But these days people don't get to retire very often and must just keep working. There has to be some reason he is falling asleep. It's not normal to just drop off and fall asleep that easily. It probably is some meds he's on. You're going t have to talk to him and tell him he's sleeping all the time and if it's the meds, he needs to change his meds.

 

The only alternative I can see will be harder on him but it is to try to put him on a task where he is up standing some or walking around, in other words, keep him moving. If you have to, create a secondary position where he oversees others or the like and has to wander around and look in on people or have him on a training mission where he has training sessions with individuals.

 

If you just want him to be able to survive there and not fire him, by all means put him into an office where he won't get caught, then. Or ask him if there's better hours for him to work where he'd be more alert. Or ask him if he wants to work fewer hours. He probably can't afford to, but you never know. You could also give someone in the office the task of calling his desk every hour to wake him up.

 

If you feel he has to go, then talk to him about applying for disability. Not sure he can get it, but he can try and that would help sustain him. Really, it sounds like a medication problem to me. If it wasn't, he'd have been sleeping all along. It's even possible he's taking some med you're not supposed to ever have alcohol with (a friend of mine who has arthritis is on one like that) and he is not following instructions and this is the side effect.

 

He's got to open up to you about it so you can help him. If not, not sure I wouldn't call his wife on the quiet and ask her to intervene.

 

 

Thank you for taking the time to reply. I didn't just want people on here to say fire him. That's not what I'm looking for. It is very frustrating for me but I am trying to be compassionate. I can't simply move his office as there isn't much space to move him and honestly I need him to do the work I assign him. I know he is prideful and probably won't come to me for help but something has to give. I truly want to find a resolution to this problem. I thought about taking my direct supervisor (whom has also seen him sleeping recently) in with me to talk with him that way he doesn't think it's just me picking. Maybe if he see's that others in the office have seen him sleep and he isn't as discrete as he thinks he is maybe it will stop him.

 

 

I agree that it is probably medication and he also told me the last time I brought it up that he has trouble falling to sleep due to the RA and has trouble staying asleep due to being uncomfortable. I honestly want to deal with him in the most compassionate way possible but either way it has to be dealt with. If the wrong person walks by and see's him sleeping he could lose his job and I might catch some flack as well.

[preraph]

Yes, nighttime is the worst time for arthritis. He is sleep-deprived. I wonder if there is any flex schedule you can work out (how close by does he live?) where he could go home for a nap. See, with RA, you stiffen up if you don't move. But short naps work best. Any way he could go either home mid-day and sleep for two hours or maybe on a sofa at work but then stay a bit later or come in a bit earlier? Maybe it's worth it having a sofa in a private office somewhere he can go into for a nap. It's better than him doing it at his desk. Or ask him if he wants to do a split shift like I said earlier and go sleep. Or ask him if he wants to work a 6-hr day and either lose hours or come in on the weekend and work an extra 6-hour day.

 

Caffeine isn't the answer because he'd never go to sleep at night and it makes you hungover in the morning. I have a friend with a different but really bad type of arthritis who recently told me she wishes she didn't have a desk job because she needs to be able to get up and move around to keep her pain down. So I really think maybe having him get up and take moving breaks rather than falling asleep taking sleeping breaks might help as well. Maybe let him come in later in the morning so he has more hours in bed because he has to get up and move and go back to bed (so do I). Anyway, getting up from the desk will keep your metabolism up. So maybe insist he get up on the hour and take a walk outside. It will wake him up plus keep him from getting as stiff. A stationary bike or a treadmill might be nice to have there.

[Thicke2013]

Yes, nighttime is the worst time for arthritis. He is sleep-deprived. I wonder if there is any flex schedule you can work out (how close by does he live?) where he could go home for a nap. See, with RA, you stiffen up if you don't move. But short naps work best. Any way he could go either home mid-day and sleep for two hours or maybe on a sofa at work but then stay a bit later or come in a bit earlier? Maybe it's worth it having a sofa in a private office somewhere he can go into for a nap. It's better than him doing it at his desk. Or ask him if he wants to do a split shift like I said earlier and go sleep. Or ask him if he wants to work a 6-hr day and either lose hours or come in on the weekend and work an extra 6-hour day.

 

Caffeine isn't the answer because he'd never go to sleep at night and it makes you hungover in the morning. I have a friend with a different but really bad type of arthritis who recently told me she wishes she didn't have a desk job because she needs to be able to get up and move around to keep her pain down. So I really think maybe having him get up and take moving breaks rather than falling asleep taking sleeping breaks might help as well. Maybe let him come in later in the morning so he has more hours in bed because he has to get up and move and go back to bed (so do I). Anyway, getting up from the desk will keep your metabolism up. So maybe insist he get up on the hour and take a walk outside. It will wake him up plus keep him from getting as stiff. A stationary bike or a treadmill might be nice to have there.

 

 

Thanks again for your reply. I am convinced now that it is medication. He came in yesterday and hadn't been here 10 minutes and I walked by and he was slumped over asleep. He lives nearly an hour away so the nap thing wouldn't work. I offered last time we talked to let him go to his truck to take a nap if he felt himself getting that tired but he hasn't taken me up on it. I also told him that he needs to get up and move more. I've asked him if he has something to discuss with me throughout the day (which he does very often) that he needs to get up and walk to my desk which is only 20' away but it gets him up and moving. I also told him that if he needs to get up and walk outside for a few minutes to do so.

 

 

I have asked my direct supervisor who knows him well and we all work close together, to be a part of the next conversation. I want him to see that it isn't just me that see's him sleeping. I want him to realize how serious this is and that I am willing to work with him but he has to be willing to do his part as well.

[whichwayisup]

Did he actually say it's his medication that's making him sleepy or are you assuming it is?

 

It's good you involved someone else to help you with this.

 

He has to make more of an effort, health aside, he has been warned many times now about falling asleep at his desk and it keeps happening and it seems he's not trying to prevent it, he hasn't taken up your offer to have a nap somewhere, he doesn't get up and walk around either.

 

When he actually does work, is he productive? Just wondering if he's slowing down with age and throw in the health issues, he doesn't care anymore.. Just a thought to consider.

[Diezel]

I've actually had this problem before with someone.

 

Is there any way you can get that person to sit in a different place that isn't by a busy hallway? I know that doesn't solve a productivity issue, since he is sleeping and not working.

 

But it's a start.

[BlackHat]

This is an easy one which I have done many times.

 

You have obviously given him a verbal warning, and I must say that I seldom see people as nice and compassionate as you. He is lucky I am not his boss. Well done. Now here are your options.

 

OPTION 1: Now what you need to do is to involve HR. You give him a verbal warning with HR as witness. You explain what you have seen, the options you have given him, and the fact that this issue has not been resolved. You ask the guy to come to you with the corrective actions he was to undertake to improve the situation.

 

If nothing changes, written warning and you know the deal...

 

HOWEVER

 

It could be possible that, despite his sleeping habits, he gets the work done. I had a guy in my team who always came late and left early. Everybody complained until I show everybody that he did roughly 20% more work than any of the others, and invited all others to come late and leave early if they can match his numbers.

 

If your guy is such guy, then

 

OPTION 2: Change his location, change his working hours, or let him work from home. As long as he put the numbers and nobody can see his behavior, what do you care where or when he sleeps?

[preraph]

Thanks again for your reply. I am convinced now that it is medication. He came in yesterday and hadn't been here 10 minutes and I walked by and he was slumped over asleep. He lives nearly an hour away so the nap thing wouldn't work. I offered last time we talked to let him go to his truck to take a nap if he felt himself getting that tired but he hasn't taken me up on it. I also told him that he needs to get up and move more. I've asked him if he has something to discuss with me throughout the day (which he does very often) that he needs to get up and walk to my desk which is only 20' away but it gets him up and moving. I also told him that if he needs to get up and walk outside for a few minutes to do so.

 

 

I have asked my direct supervisor who knows him well and we all work close together, to be a part of the next conversation. I want him to see that it isn't just me that see's him sleeping. I want him to realize how serious this is and that I am willing to work with him but he has to be willing to do his part as well.

 

Yes, he has to be willing. Maybe the direct supervisor can influence him. You've done a good thing trying to work with him on this, but it's up to him to help himself as well.

[angel.eyes]

Well, I certainly feel for him if indeed pain underlies his behavior. Pain can be incredibly disruptive to one's life. But his reaction to the situation suggests that there's more to this. I'm curious. Was he sleeping on the job with his previous supervisor?

 

At any rate, there are numerous issues here:

 

First and most importantly, he's doing nothing to find remedies to his issue. You are! Then you're begging him to sleep in his truck rather than at his desk. Pretty soon you'll be bringing in fluffy pillows, warm blankets, and a comfy cot to accommodate the neck crick he develops from all his napping! How about the focus return to his work productivity?

 

From your description, he seems unconcerned and doesn't display any real motivation to fix the problem. That tells me he has little if any respect for you.

 

Someone in his situation who is genuinely focused on doing a good job at work would be way more proactive! Certainly when it was raised as an issue, they would come up with multiple suggestions and possible solutions and follow thorough on those. I'm hearing none of that. There's no effort on his part to even try and move things in a positive direction. And quite frankly, why should he? I mean, if I can camp out at work, sleep all day and still earn my paycheck relatively undisturbed, what motivation is there to do anything? Throw in the added benefit of entertaining the team with his misbehavior and your begging him to go hide when he sleeps? ...He'll keep escalating.

 

Question:

Is sleeping on the job impacting his actual performance and productivity? Document!

 

If it is, it's unfair to other team members to be busting their butts in a busy workplace while he turns his workspace into a de facto bedroom for the same paycheck. Who is picking up his slack? Are they sharing his paycheck? His behavior will impact team cohesion, morale, and performance if it continues. Not to mention, it will also affect everyone's perception of you as a manager, and ultimately your effectiveness.

 

It's nearly impossible to lead a team that doesn't respect you and views you as an incompetent leader. Quite frankly, if you are openly coddling someone who is defiantly refusing to do his job around you (and let's face it, it doesn't get much ruder than sleeping in front of your boss in the office...especially after she begs you to sneak away and sleep in your truck), you're going to lose all credibility and respect pretty quickly. If it isn't already happening, YOU will become the butt of jokes behind your back...among the people working for you, among your peers, and among leadership above you. That's a very ugly place to be.

 

In your shoes, I would document, document, document. Discuss involving HR with your boss. Then sit down with HR and your boss and come up with a plan of action. If you're in the US, I see three obvious possibilities here:

1. He goes out on disability if this genuinely stems from his medical issues. He can focus on getting those under control while he's out. If it's just tweaking his meds, he can come back off (short-term) disability once that's resolved. If not, it turns into long-term disability if he qualifies.
   
2. He gets a written warning and goes on a performance improvement plan
   
3. He gets reassigned to a non-desk job should an opening exist.
   

 

FWIW, if he were actually making a serious effort to address the situation, I would respond differently. But he isn't! He's making a mockery of you while you run around ineffectually begging him not to be so blatant about not sleeping on the job.

 

Are you in a newly created role? If not, what happened to your predecessor? Promoted, left, or fired? What did the team think of that person? Did anyone reporting to you (e.g. this guy) apply for your position when it became open?

 

Context can be helpful.

[Auspecial]

I think he is taking advantage of your compassion. Unfortunately, you will need to step it up and give him a written warning. You have extended a kindness almost no other boss would by letting him take a little nap out in his truck, and he still is blatantly sleeping at his desk. Actually hiding it, so he obviously knows he is doing something and not"just" drifting off. He's making his own bed, no matter what his age is.

 

Tough Love.

[Thicke2013]

Thank you for all the replies! They are helping me put this all in perspective. I was on vacation last week and I disconnected all electronic devices.

 

I come to work this morning to him being out again. He called in saying he went somewhere this past weekend and did a lot of walking around and needed today to recover. He also got home late due to traffic, yada, yada. All I hear anymore is words and excuses. I drove 15+ hours yesterday to return from my vacation but I'm' here today. I have already talked to my direct supervisor and we have a meeting this afternoon to discuss further.

 

To reply to some of the comments above, I have not begged him to do anything. I simply offered him a solution that if followed would work for the both of us. I want to be fair and compassionate given the age and his health. He did tell me that his medication made him sleepy and also that he wasn't sleeping well due to his RA issues which left him tired a lot. That is why I offered the nap. Also to be clear, I didn't offer a nap time everyday. Only on days where he had a bad night and found it hard to stay awake. I figured if he could get a 20 min power nap in it would help productivity. I also told him to do other things on his own to help such as walking around, going to get a drink of water, etc. I've seen him do those things so I need to still be careful. I do keep very detailed attendance records and I actually file all of his VM's when he calls in.

 

 

As for my position, it is a newly created role but the department has existed as long as the company has been in business. It consisted of 3-4 people at one time but as business slowed and other areas grew, it dwindled down to 1 person. My subordinate. Then the company decided to focus in this area of the business and grow it again and they asked me to manage the department which means I inherited this guy. Like I said, all in all he is a decent employee but the sleeping coupled with his attendance lately leaves a lot to be desired.

[optomistic_nonsense]

Although I am not a manger, I can see how frustrating this has been for you and the toll it's taken on you.

 

Is your gut telling you that he may be playing this up more than it's really affecting him, or do you feel he is being genuine about his situation?

 

I do have to agree with BlackHat as far as needing to involve HR at this point. It seems as though you've given him a plethera of options and have covered all of your bases. Sadly, there are not many bosses like you (at least that I've dealt with!), so you taking the time and effort to accomodate him and provide him with multiple options is absolutely wonderful, however I do think it's time this gets placed with HR.

[applej4]

Careful - you might give him ammo for an age discrimination complaint. You sound very ageist and resentful of his exoerience.

[Thicke2013]

Careful - you might give him ammo for an age discrimination complaint. You sound very ageist and resentful of his exoerience.

 

 

I'm curious of what I said that would make you think that I resent him in anyway? Please elaborate.

 

 

I am not resentful at all for his experience. I am quite knowledgeable in my field as well but there is no substitute for experience. As for his age, he is close to my fathers age, therefore I am compassionate that he has these health problems at a relatively young age. I don't resent that at all. I have been given sales goals for this department and for the 7 months last year that I was manager we exceeded those goals and I plan on repeating that this year as well. What I need is someone (regardless of age or any other factor) that is as driven as I am and willing to put the work in to do that.

[GemmaUK]

I read your thread a while ago and having been a manager in the past (not currently) I think you were doing the best that you could.

 

 

However, I know that a heavy weekend can exhaust me and I am likely not as old or ill like he is so I make sure I book a day off if I know I am having a heavy weekend.

 

 

I think you have come to the point where yes, he is giving excuses now.

Do you have company medical?

Could you get him assessed?

We got one of our managers assessed not so long ago as she was diagnosed with MS.

Funnily enough she was able to work again after the assessment but hadn't worked and had been fully paid for 5 months while she was at home, going away to see friends, going out drinking.. None of it looked good to any member of staff and it was also all on facebook.

Plus a guy at work was diagnosed with MS a few months before her and he is rarely off sick and is also renovates houses in his spare time.

MS can get people in all different ways but - the respect for the manager who was diagnosed is now lesser than it is for the team member who was also diagnosed. They both endure identical treatments too.

 

 

She now also has a dog who requires 2 hours exercise per day and she is able to cope with that also.

 

 

You can hire medical assessors if you don't have them on insurance and it can be an ongoing thing and linked to their hospital/GP.

 

 

If he took that day I hope he offered it as holiday?

I'm afraid he may be walking over your understanding of his condition somewhat. You need to address it.

I'm glad you have spoken to someone about it.

 

 

Tough situation but you need to address it.

[Thicke2013]

I read your thread a while ago and having been a manager in the past (not currently) I think you were doing the best that you could.

 

 

However, I know that a heavy weekend can exhaust me and I am likely not as old or ill like he is so I make sure I book a day off if I know I am having a heavy weekend.

 

 

I think you have come to the point where yes, he is giving excuses now.

Do you have company medical?

Could you get him assessed?

We got one of our managers assessed not so long ago as she was diagnosed with MS.

Funnily enough she was able to work again after the assessment but hadn't worked and had been fully paid for 5 months while she was at home, going away to see friends, going out drinking.. None of it looked good to any member of staff and it was also all on facebook.

Plus a guy at work was diagnosed with MS a few months before her and he is rarely off sick and is also renovates houses in his spare time.

MS can get people in all different ways but - the respect for the manager who was diagnosed is now lesser than it is for the team member who was also diagnosed. They both endure identical treatments too.

 

 

She now also has a dog who requires 2 hours exercise per day and she is able to cope with that also.

 

 

You can hire medical assessors if you don't have them on insurance and it can be an ongoing thing and linked to their hospital/GP.

 

 

If he took that day I hope he offered it as holiday?

I'm afraid he may be walking over your understanding of his condition somewhat. You need to address it.

I'm glad you have spoken to someone about it.

 

 

Tough situation but you need to address it.

 

 

Yes he did have to use a vacation day of course. I spoke with him yesterday but didn't specifically bring up the sleeping. I simply gave him a list of things to do that I said must be done this week. If focused, he should be able to complete this list in 2 days. At the end of the week I have requested that he, my direct supervisor and I sit down and discuss the progress.

[Got it]

Listen no one has advised you of this but you are getting yourself in some very hot water. Stop now engaging with him, go to HR, relay everything to them and they need to discuss with him any FMLA and ADA concerns. If this is his medication he most likely be covered under one/both of these. And then they will request doctor's accommodation paperwork to see what the company can reasonably accommodate.

 

By him telling you about the meds potentially being the issue he gave you enough information, legally, to hold the company responsible for not extending FMLA/ADA.

 

I would be happy to post more information but your HR department should be able to walk you through it and the process.

[Thicke2013]

Listen no one has advised you of this but you are getting yourself in some very hot water. Stop now engaging with him, go to HR, relay everything to them and they need to discuss with him any FMLA and ADA concerns. If this is his medication he most likely be covered under one/both of these. And then they will request doctor's accommodation paperwork to see what the company can reasonably accommodate.

 

By him telling you about the meds potentially being the issue he gave you enough information, legally, to hold the company responsible for not extending FMLA/ADA.

 

I would be happy to post more information but your HR department should be able to walk you through it and the process.

 

 

 

There isn't really an HR here. Our HR consists of our accounting manager. I work for a fairly small (about 200 employees total) company that is a one (1) owner company. As for FMLA or ADA, he hasn't applied for either as far as I know. I don't believe that I have done anything wrong at this point. I have offered (and documented) options for him if his meds are affecting his work performance. I spoke with my boss today and we are going to write it up and have him sign that he was offered this along with modified work hours if need be. That way if something continues to happen and we must take further action, then it is documented and signed.

[Got it]

There isn't really an HR here. Our HR consists of our accounting manager. I work for a fairly small (about 200 employees total) company that is a one (1) owner company. As for FMLA or ADA, he hasn't applied for either as far as I know. I don't believe that I have done anything wrong at this point. I have offered (and documented) options for him if his meds are affecting his work performance. I spoke with my boss today and we are going to write it up and have him sign that he was offered this along with modified work hours if need be. That way if something continues to happen and we must take further action, then it is documented and signed.

 

I would advise against that. You need to request your company advise you on proper procedures. Talk to the accounting manager if that is the person who does HR. If the accounting manager wants to do the letter then let them but DO NOT OWN THIS. If the company is sued you want to CYA yourself on it. Request HR guidance that is on them, but you want to request and want to request that the appropriate person take the lead on this.

 

200 people is a large enough company (and does not constitute as small) to follow federal guidelines. He does NOT have to specifically ask for either. Again, him just notifying you of medical concerns is notice enough.

[Got it]

For FMLA purposes, employers are automatically considered to be engaged in commerce or in an industry or activity affecting commerce if they meet the 50-employee threshold for employer coverage. Therefore, while the FMLA's regulations define the terms commerce and industry affecting commerce, employers need not understand such definitions in order to determine whether or not they are covered by the FMLA. +29 C.F.R. § 825.104(b).

 

Number of Employees - Who Should Be Counted

 

Any individual that the employer suffers or permits to work should be counted for purposes of the 50-employee threshold for employer coverage. The employer's full time, part-time and seasonal employees are counted for purposes of the 50-employee threshold. +29 C.F.R. § 825.105(a).

 

What Constitutes an Employee's Notice of Need for FMLA Leave

 

An employee need not explicitly request "FMLA leave" or ask for FMLA protection for the leave to be protected under the FMLA. +29 C.F.R. § 825.302©; +29 C.F.R. § 825.303(b). The employer need only receive enough information from the employee, the employee's family member or the employee's other designated representative to determine if the time off qualifies as FMLA leave.

 

Practical Example

 

John calls his employer, Acme 123, to say that he will be absent from work. During the call, he never mentions that he wishes to take FMLA leave. However, John does mention that his doctor recommends he stay home due to shortness of breath and chest pains. John has provided enough information for Acme 123 to be on notice that John's time off from work may qualify as FMLA leave.

 

Determining Employee Eligibility for FMLA Leave

 

Once an employer has notice of an employee's need for FMLA leave, the next step is determining whether the employee is eligible for leave.

 

The FMLA uses a three prong test to determine if employees are eligible for leave. An employee of a covered employer is eligible for leave if the employee:

 

Has been employed by the employer for at least 12 months;

Has been employed for at least 1,250 hours during the 12 months immediately preceding the leave (subject to special hours of service requirements for airline flight crew employees); and

Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

+29 C.F.R. § 825.110(a)(1)-(3).

 

First Prong: Twelve Months of Service

 

To be FMLA eligible, the employee must have worked at least 12 months as of the date the leave is to start. These 12 months do not need to be consecutive. +29 C.F.R. § 825.110(b). Generally, time spent before a break in service of seven years or more is not counted toward the 12 months, but there are exceptions to this rule. +29 C.F.R. § 825.110(b)(1).

 

Time worked before a break in service must be counted toward the 12 months if:

 

The break in service is the result of the employee's military service or National Guard or Reserve service; or

The employer has made a written commitment to re-hire the employee after the break in service.

The written commitment to re-hire an employee can be an agreement applying to one particular employee, or it could be part of a collective bargaining agreement. +29 C.F.R. § 825.110(b)(2)(i)-(ii).

 

An employer may choose to recognize time before a seven year break in service as counting toward the 12 months of service. However, if it wishes to do this, the employer must do so uniformly for all employees with similar breaks in service. +29 C.F.R. § 825.110(b)(4).

 

When the employee's break in service is the result of time spent in the National Guard, Reserves or other military service, the time served must be counted toward the 12 months of employment needed to be FMLA eligible. However, the employee does not have greater rights than would be available under the Uniformed Services Employment and Reemployment Rights Act (USERRA). +29 C.F.R. § 825.119(b)(2)(i). See Employee Leaves > USERRA > USERRA Interplay.

 

Under FMLA, 52 weeks of service equal 12 months of service. An employee is considered to have a week of service counting toward the 12 months of service requirement even though the employee does not work a full week. +29 C.F.R. § 825.110(b)(3). As a result, employees working on an intermittent, occasional or casual basis may be eligible for FMLA sooner than one might assume.

 

An employee is credited with a week of service if:

 

The employee is on payroll for any portion of the week; and

Other benefits or compensation are provided by the employer.

Paid or unpaid leave (such as sick leave or vacation), count as a week on payroll and thus a week of service. Further, when an employee receives other benefits and compensation, such as workers' compensation benefits, group health plan benefits, etc., those time periods will count toward an employee's weeks (and months) of service. +29 C.F.R. § 825.110(b)(3). Because time spent on other forms of leave can qualify toward the 12 months of service requirement, an employee may become eligible for FMLA leave while already on some other type of leave. If there is an FMLA-qualifying reason for leave, the portion of the leave that is taken after the employee becomes eligible is FMLA leave. +29 C.F.R. § 825.110(d).

 

Second Prong: 1,250 Hours of Service

 

An employee must have worked 1,250 hours in the last 12 months (subject to special hours of service requirements for airline flight crew employees). The 1,250 hours of service are determined as of the date the leave is to start. +29 C.F.R. § 825.110(d). Hours that are considered compensable under the Fair Labor Standards Act (FLSA), 29 C.F.R. § 725, count toward the 1,250 hours required for FMLA eligibility, again subject to special rules applicable to airline flight crew employees. +29 C.F.R. § 825.110©(1). See Employee Compensation > Hours Worked; Hours Eligibility Rules for Flight Crews and Flight Attendants

 

Employees who are returning from service in the National Guard, Reserves or regular uniformed services must be credited with hours they would have worked but for the period of absence from work due to or necessitated by USERRA-covered military service. The hours the employee would have worked must be added to the hours the employee actually did work in the 12 months prior to the start of FMLA leave to determine if the hours of service requirement (1,250 hours for all employees other than airline flight crew employees) has been met. +29 C.F.R. § 825.110©(2).

 

Practical Example

 

On January 1, Mary requests an FMLA leave from her employer Acme Automotive, Inc. to begin immediately. In the 12-month period prior to January 1, Mary performed National Guard service for four months and worked 900 hours in the other eight months. Mary's regular work schedule requires her to work 120 hours per month - or 480 hours in a four month period. To determine if Mary has met the 1,250 hours service requirement, Acme Automotive must add the 900 hours Mary did work to the 480 hours she would have worked had she not performed National Guard service and must credit Mary with all of those hours as if she had worked them in the past 12 months. Mary will be credited with working 1,380 hours in the 12-month period prior to the requested leave's start and will have met the 1,250 hours service requirement. Thus, Mary will be eligible to take an FMLA leave.

Employers may not have accurate time records for executives, administrators, professionals and other employees who are exempt from overtime pay requirements, because employers usually do not track the number of hours exempt employees work. Where accurate time records are not available, the employer must prove that the employee did not work the required 1,250 hours if it intends to deny the requested leave. +29 C.F.R. § 825.110©(3).

 

When evaluating whether an employer can prove that an exempt employee did not work the required 1,250 hours in the 12 months before the requested leave is to start, an employer should remember that exempt employees may work away from the worksite. For example, teachers may grade papers or prepare lesson plans while working from home, or executives may work on performance reviews or budgets while otherwise on vacation. All such time must be accounted for in determining whether the employer can lawfully deny the requested leave on the ground that the employee did not work the required 1,250 hours in the 12 months before the leave is to start.

 

Family and Medical Leave Act - Wage and Hour Division (WHD) - U.S. Department of Labor

[Got it]

Summary

Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against an individual with a disability with respect to job application procedures, hiring, advancement, termination, compensation, job training, and other terms, conditions and privileges of employment. See Overview of Disability-Related Laws.

 

Under the ADA, employers are entities that employ 15 or more individuals during a 20-week period. However, employers should consider that state laws or local ordinances that prohibit discrimination based on an individual's disability may have a lower threshold number of required employees for coverage. See ADA Employer Applicability.

 

Employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. See Required Postings Under the ADA.

 

In the ADA context, an employer's job description is often consulted to provide the employer's description of which job functions are essential. In order to be able to rely on a job description, the job description should meet certain criteria. See

Job Descriptions.

 

Employers should provide training on some practical steps to take for those persons in their organization who are charged with facilitating and engaging in the interactive process (i.e., members of the HR team, leave coordinators, etc.). See Training.

 

For purposes of the ADA, the EEOC distinguishes between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics. See Characteristics vs. Impairments.

 

Once an impairment is identified, the next step in assessing whether an individual is disabled under the ADA is to determine what impact, if any, that impairment has on the individual's major life activities. An individual is not disabled unless he or she is substantially limited in one or more major life activities. See Substantially Limits.

 

The ADA protects employees known to have a relationship or association with a person with a disability (persons with close familial, social or physical relationships with an individual with a disability). See Additional Groups of Persons Who May Be Protected by the ADA.

 

The ADA requires employers to provide reasonable accommodations to individuals with disabilities, unless the individual is not qualified for the job or doing so would cause an undue hardship on the employer's business A reasonable accommodation is a reasonable adjustment to a job or work environment that enables an individual with a disability to equally compete in the workplace and perform the essential duties of the position held or desired. See Duty to Accommodate and the Interactive Process.

 

Once an employer is aware that an employee has a disability under the ADA and the disability is affecting the employee's ability to perform the essential functions of the job, the employer and employee must engage in an open-ended dialogue to determine if a reasonable accommodation exists to enable the employee to perform the essential functions of the job. See

 

The Interactive Process.

 

The interactive process requires employers and employees to communicate directly with each other to facilitate the process.

 

One way an employer can ensure effective communication with an employee who has requested an accommodation is to promptly schedule a meet-and-confer session to discuss the employee's request. See Meet-and-Confer Sessions.

 

Employers are not required to provide an accommodation that would cause an undue hardship on an employer's business. An undue hardship means the requested accommodation will cause the employer significant difficulty or expense. See Undue Hardship.

 

Employers are not bound by any specific policies or procedures when engaging in the interactive process to determine whether a reasonable accommodation exists. Nevertheless, employers should develop formal policies and procedures as to the protocol that should be followed when such requests are made. See Accommodation Policies.

 

An employer is permitted to make a disability-related inquiry if the inquiry is job-related and consistent with business necessity. An employer may ask questions and/or require a medical examination if it has reason to question whether an applicant or employee's ability to perform essential job functions will be impaired by a medical condition. See Job-Related/Business Necessity.

 

The ADA permits employers to require an examination or inquiry when an employee wishes to return to work after an injury or illness. The examination or inquiry must, however, be job-related and consistent with business necessity. See Fitness-for-Duty Examinations.

 

An employer may require that an individual not pose a direct threat as long as that qualification standard is applied to all persons who apply for and currently hold a particular job. An employer that has reason to question an employee's ability to perform the essential job functions without posing a direct threat of harm to himself or herself or to the safety of others may make disability-related inquiries and/or require that the employee submit to a medical examination. See Fitness-for-Duty Examinations.

 

Under the ADA, the abuse of illegal drugs is treated differently than the abuse of alcohol. In addition, drug testing is not considered a medical examination under the ADA. See Drug Testing Is Not a Medical Examination.

 

In cases of pandemics, an employer may ask an employee if he or she is experiencing symptoms related to the pandemic. For example, if the pandemic is influenza, an employer may ask if the employee is experiencing flu-related symptoms such as fever or chills and a cough or sore throat. The employer must maintain all information about the employee's illness as a confidential medical file in compliance with the ADA. See Medical Examinations and Disability-Related Inquiries During a Pandemic.

 

All employers are required to remove obstacles that would eliminate or prevent applicants with disabilities from participating in recruitment activities and hiring processes in general. See Preemployment Practices Regulated by the ADA.

 

Employers should retain employee records related to medical examinations, the interactive process, accommodations, and other important documents related to employee disabilities and the ADA. See ADA Recordkeeping.

 

When employees seek leave under the Family and Medical Leave Act (FMLA) for their own serious health conditions (as opposed to those of their parents, spouses, children, etc.), the employer must ensure that employees not only receive any leave they may be entitled to under the FMLA, but also that the employer complies with its obligations under the ADA. See ADA Interplay.

 

The ADA prohibits discrimination in the workplace on the basis of an employee or a job applicant's disability. In considering a disparate treatment claim by an employee with a disability, courts seek to determine whether the employee with a disability was treated less favorably in similar circumstances than other employees who were not disabled. A court will seek to determine whether or not the disability actually motivated the treatment or the employer's decision. See Disparate Treatment.

 

The ADA prohibits discrimination on an adverse impact theory. Under the adverse impact theory, a neutral employment practice or policy may be considered discriminatory and illegal if it has a disproportionate adverse impact on individuals with disabilities. By way of example, a policy that requires employees returning from a leave of absence to be 100% fit for duty may have a disparate impact on individuals with a disability if it does not take into consideration an employee's ability to perform the essential functions of a position with or without a reasonable accommodation. See Disparate Impact.

 

The ADA prohibits discrimination against employees known to have a relationship or association with an individual with a disability. See Association Discrimination.

[preraph]

By him telling you about the meds potentially being the issue he gave you enough information, legally, to hold the company responsible for not extending FMLA/ADA.

 

Yes, but only if he has presented work a statement from his doctor saying he needs to have leave because he can't work. Even if he has a letter and hasn't given it to them, they're off the hook on that. And I haven't heard of doctors giving notes saying people can't work because of sleep-inducing meds before and have seen a lot of legal transcripts.

 

And for him to be considered disabled, he would have to have been declared eligible through Social Security Disability. It does not sound like he has done anything like that to be considered disabled.

Edited April 17, 2015 by preraph

[Got it]

Yes, but only if he has presented work a statement from his doctor saying he needs to have leave because he can't work. Even if he has a letter and hasn't given it to them, they're off the hook on that. And I haven't heard of doctors giving notes saying people can't work because of sleep-inducing meds before and have seen a lot of legal transcripts.

 

And for him to be considered disabled, he would have to have been declared eligible through Social Security Disability. It does not sound like he has done anything like that to be considered disabled.

 

Jesus on a pogo stick. No. Just no. So no. You are so wrong it isn't even funny. This is not how ADA or FMLA work or how one qualifies (or doesn't).

[Thicke2013]

Got it

 

 

I apologize if I mislead you. All of these steps would and do go through our HR/accounting lady. All of his attendance sheets get turned in to her, etc. The documentation was actually her idea. I tried to help him as a friend/coworker first as we worked together prior to me becoming his superior. Everything since has come through HR, if you want to call it that.