DEALING WITH THE ABANDONED SHIP SYNDROME:

ADDRESSING EMPLOYEE ABSENTEEISM

Presented By: Roman J. Muñoz

October 9, 2014

A “reasonable accommodation” includes rescinding discipline if the

employee reveals that his/her misconduct was the result of a

disability.

Answer: False. Employers may hold employees (those

with and without disabilities) to the same performance and conduct

standards.

Two (2) teachers are still too ill to return to work after being on reemployment list for 39 months – one (1) was on STRS Disability Leave and the other was not. The district may notify both teachers that their failure to return to work constitutes an automatic

resignation.

Answer: True. Education Code sections

44978.1 and 44986.

A teacher who does not work at least 75% of the student instructional days

will not advance on the salary schedule that year?

Answer: False. The Education Code does not state how certificated employees advance

on the salary schedule.

Under Education Code section 44973 a teacher must be reinstated to his or her former position upon returning

from a leave of absence?

Answer: True.

The courts have interpreted section 44973 to permit a school district to assign teachers anywhere within their credentialed area, according to the needs of the school

district. Tenure does not bestow on a the teacher a vested right to a specific school or to a specific class

level of students within any school. See, Adelt v. Richmond School District (1967) 250 Cal.App.2d 149;

Kennedy v. Board of Education (1890) 82 Cal. 483.

It is scientifically possible to determine whether an individual is under the influence of drugs by conducting a

urinalysis?

Answer: False. While it can be determined that a

specific drug is in an individual’s system, it is very unlikely that a doctor will be able to tell you whether person

was under the influence.

Under the Education Code, an employee is required to such leave on

consecutive days and provide proof he/she attended a funeral.

Answer: False. The Education Code uses the term “bereavement” which is

different from “funeral” leave used in other industries. Funeral leave broadly refers to any ceremony, event or

activity that sanctifies, celebrates or remembers the life of a deceased person. Plainly, there are many customs and

practices through which family members might honor and bless the life of a loved one. While for many, if not most, it will be a religious event, that is not what is required under

the Education Code. “Bereavement” is a much broader term.

“Abuse of sick leave” is defined in the Education Code.

Answer: False. However, as an example an arbitrator found that a school

board properly reprimanded a teacher and withheld 1 day’s pay because she failed to submit medical

certification in support of a sick leave claim for a Friday absence when she had had 17 sick leave absences on Mondays, Fridays, and days before or after holidays during 2 school years. (Pallisades, Ill., Cmty. Consol. Sch. Dist. No 180, 93 LA 1218, 1221-24 (Wies, 1989))

An employee failing to properly report absences may be prosecuted under

the Penal Code.

Answer: True. Penal Code section 424 prohibits knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same. Is punishable by imprisonment in the state prison for two, three or four years, and is disqualified from holding any office in this state.

Evidence supported conviction for violation of statute prohibiting misappropriation of public funds based on defendant's submission of false time cards and acceptance of pay for work not performed; defendant was city employee who admitted falsifying her time cards by indicating time worked or taking sick time for periods when she was neither working nor home sick, but actually teaching classes at second job. People v. Groat (App. 6 Dist. 1993) 24 Cal.Rptr.2d 15, 19 Cal.App.4th 1228.

LEAVE OF ABSENCE LAWS (Federal and State)Categories of Leave

(Certified and Classified)

Family Care and Medical Leave (FMLA)• Special Rules for employees of public school boards and

elementary and secondary public schools. (29 CFR 825.600)• Taking leave during summer does not count against the

employee.• Instructional employee taking leave for 20% of total

number of working days, may have to:• Take continuous leave or• Transfer temporarily to an alternative position.

California Family Rights Act (“CFRA”) Reasonable Accommodations (ADA and FEHA)

GENERAL MANAGEMENT

Reduce/control absence of school staff •Communication- Raise awareness of

importance of consistent attendance.•Monitor attendance•Recognize and encourage employees

(exhibit concern for well-being, acknowledge good attendance)

ATTENDANCE MONITORING AND IDENTIFYING PROBLEM ATTENDANCE

Recording AbsencesAbsences excluded from statistics

Identifying potential problems

MANAGING ATTENDANCE PROBLEMS

Step 1: Coaching/CounselingStep 2: Determine Type of Absence

Step 3: Further Action

STEP 1: COACHING/COUNSELING

Initial Discussion/Meeting Plan the meeting Meet with the employee Follow up meeting with the

employee Meeting followed by letter

STEP 2: DETERMINING THE ABSENCE TYPE

Culpable absenteeism Non-culpable absenteeism Disability

EMPLOYEE NOTICE OF LEAVE REQUIREMENTS

The test is whether the information imparted to the employer is sufficient to reasonably apprise it of the employer’s request to take time off for a serious health condition. (Brenneman v. MedCentral Health Sys. 366 F.3d 412 (6th Cir. 2004)).

• Ex: verbal notice, doctor’s note, employer’s knowledge of health condition of employee when employee did not show up to work.

• If unclear, employer has duty to inquire further to determine whether condition qualifies for leave. (29 CFR 825.302(c)).

• Employee needs to give advanced notice when absence is foreseeable. (30 days under FMLA)

CASES Righi v. SMC Corp., 632 F.3d 404 (7th Cir. 2011)

FACTS Employee’s e-mail to employer said he needed “the next couple days off” to attend to his mother, but then employee fell silent for a full week, ignored supervisor's many follow-up phone calls, was absent without permission for nine-day period that included six work days, nothing indicated that employee's circumstances were extraordinary, and employer's written policy required employees to obtain approval for leave from supervisors. Court held this precluded his FMLA interference claim against employer.

RULES• When the employee fails to give his employer proper notice, the employer is under no duty to

provide FMLA leave. • The FMLA does not authorize employees to keep their employers in the dark about when they

will return from leave; indeed, employers are entitled to the sort of notice that will inform them not only that the FMLA may apply but also when a given employee will return to work.

Pellegrino v. Communications Workers of Am., AFL-CIO, CLC, CIV.A. 10-0098, 2011 WL 1930607 (W.D. Pa. May 19, 2011)

• Employee went to Cancun after surgery and did not notify employer.• Court held the FMLA does not shield an employee from termination if the employee was allegedly

involved in misconduct related to the use of the FMLA leave.

CERTIFICATION OF HEALTH CONDITIONS

CALIFORNIA (2 CCR § 7297.0.)

The California Code of Regulations provides that the health care provider's certification need not identify

the serious health condition involved. Where an employee is requesting leave for his/her own serious

health condition, the employee may provide this information at his/her option.

REQUEST FOR A GENERAL DR. DIAGNOSIS

MAY VIOLATE ADA

42 U.S.C. § 12112(d)(4)(A): prohibits an employer from making "inquiries of an employee as to whether such employee is an individual with a disability or as to the

nature or severity of the disability." However, such inquiries of employees may be lawful under the ADA if

they are "job-related" and required by "business necessity."

ABUSE OF SICK LEAVE

Nothing in the FMLA protects an employee from discipline for engaging in fraud.

CASES:• Smith v. Hope School 560 F.3d 694 (7th Cir. 2009)

• Court rejected employee’s interference and retaliation claims against the employer because the employee had added “plus previous depression” to the medical form and backdated it, even though the original form would have supported the leave request.

• Hayes v. Illinios Dept. of Corrections, 2011 WL 4946751 (C.D. III. Oct. 18, 2011)

• Employee called in sick due to panic attack but then attended scheduled court appearance.

• Non-disability

STEP 3: FURTHER ACTION

Addressing culpable absenteeism

Is there an attendance problem? Does the absenteeism warrant discipline? Is the level of discipline appropriate?

ABSENCE AS GROUNDS FOR DISMISSAL

Cal. Edu. Code § 44932. Grounds for dismissal of permanent employees; suspension of employeesCASES

• San Dieguito Union High Sch. Dist. v. Comm'n On Prof'l Competence, 135 Cal. App. 3d 278 (Ct. App. 1982)

• Evidence that teacher had a large number of absences because of personal illness and illness of members of her family, with the absences consisting of sick leave, personal leave, and leave without pay and other recognized categories of legitimate absence and that two substitute teachers complained of not receiving lesson plans did not sustain allegation that the teacher was unfit and did not support discharge

• Tyndall v. Nat'l Education Centers, Inc., 31 F.3d 209, 213 (4th Cir.1994)• Fourth Circuit had occasion to consider regular attendance as an

essential job function. The court concluded that, except in the unusual case where an employee can effectively perform all work-related duties at home, a regular and reliable level of attendance is a necessary element of most jobs.

MANAGEMENT: SICK LEAVE UNDER FMLA AND CA LAW

Checklist when it comes to sick leave administration: Obtain complete and sufficient medical certification regarding an

employee's serious health condition, including information about treatment plans.

Enforce call-in procedures. If the employee is required by policy to call in daily or at regular intervals, enforce the policy!

Apply all policies consistently with respect to employees taking sick leaves and non-sick leaves of absence.

Communicate with employees to obtain information about their serious health condition, the need for leave, the duration of leave and their expected return to work.

Conduct a thorough investigation for misconduct of employee during sick leave before making the decision to terminate.

GENERAL EMPLOYER’S CHECKLIST Applicable Statutes

Determine if you are a covered employer under each potentially applicable statute. Determine if the employee is eligible under each potentially applicable statute. Decide if the employee has a qualifying injury or illness under the potentially applicable statute.

Requirements/Obligations under Each Potentially Applicable Statute Determine if there is a notice requirement. Decide what type of medical information you can obtain. Determine if the employee is entitled to time off and, if so, how much. Determine whether or not the employee is entitled to salary and/or benefits during the time off. Decide if the employee is entitled to job protection and, if so, for how long. As a follow-up question,

determine when you can fill the job. Determine whether or not you have to modify the employee’s job in response to a request for

accommodation. Decide when you can terminate an employee out on such a leave.

When to Use the Checklist Before each decision you make, go back through the checklist. An employee’s eligibility and/or health

condition often changes many times during the course of a “leave of absence.” It is critical to reevaluate both the potentially applicable laws at each change as well as your rights and obligations.

TIPS ON REASONABLE ACCOMMODATION

1. The employee has the initial burden of requesting or identifying the need for an accommodation, but it helps to follow up by asking the employee what he believes will help accommodate his disability.

2. Any accommodation proposed by an employee must be objectively reasonable. There are valuable resources to help you establish a list of potential accommodations. One free tool is the Job Accommodation Network, which is available by calling (800) 526-7234.

3. Ensure that the position in question has defined essential and nonessential functions. If you haven’t already done so, draft or review all job descriptions to ensure accurate descriptions of actual job duties and correctly identify the essential and nonessential job responsibilities.

4. Review job descriptions to assess the skills and competencies required to perform the essential job functions. If any technical skill or expertise is required, identify it. If there are any specific expectations, goals, or quotas, they should be included.

5. In every case, engage in (and document) the interactive process with the affected employee to identify any potential reasonable accommodation.

6. When disputes occur, consider using a mediator to help develop accommodations that are reasonable.

7. When job restructuring is requested or considered, it’s important to remember that you must consider the request only with respect to a position’s nonessential duties or marginal functions. Restructuring essential job functions is not required, even if an employee claims it is “reasonable” to do so.

8. You are not required to create a new job, move another employee, promote a disabled employee, or deprive any other employee of rights under a collective bargaining agreement to provide reasonable accommodation.

9. When appropriate, conduct a functional assessment of the employee’s ability to perform the essential functions of a position, noting any specific limitations that can be evaluated for potential accommodation.

10. When necessary, create, retain, and regularly update a list of available state or private vocational rehabilitation counselors, job coaches, and employment consultants in your area who could assist in determining if a reasonable accommodation is possible.

TIPS FOR DEALING WITH SUBSTANCE ABUSE IN THE WORKPLACE

DON’T BE THE OSTRICH

ESTABLISH A POLICY AGAINST SUBSTANCE ABUSE IN THE WORKPLACE

ADDRESS PRESCRIPTION DRUGS SPECIFICALLY

PROMOTE YOUR EAP

CONSIDER ASSISTING AN EMPLOYEE IN LIEU OF FIRING

Thank You!

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