Employee took "medical leave" with no notice

[TooMuchFun4Now]

Georgia (company located here)
We have a secretary that came in last Monday morning after one of her umpteenth Doctor's appointments (this woman goes to the doctor about every week for one thing or another) and handed a note to us (written on a doctors prescription pad) and I quote:

"Mrs. (name left blank intentionally) will be placed on medical work leave at least until next visit in 4 weeks".

The doctor's signature is just a scribbled mark on the signature line at the bottom, looks like an upside down "2" (which isn't unusual for a doctor). The note itself is very neatly printed however.
Her story was that she went into this doctor THAT VERY MONRING and he insisted he do some out-patient surgery on her THE VERY NEXT DAY and that she shouldn't work for at least four weeks. When pressed, she said this "surgery" was for her headaches (this woman was in a car wreck approximately 2 years ago, settled with the opposing insurance company for the $ they offered as soon as she was made the offer, then has had continual neck aches and headaches ever since this has happened). Thus, no less than 50 doctor's visits over the last two years and they are all documented by us. Along with her 1 1/2 hr. lunch breaks about 3 to 4 times a week, her leaving early, coming in late, etc.
This secretary has EXPLICITLY and outright told us that she would like to get onto disability but we would have to "fire her first". She first starting hinting about and then blatantly stating this about 6 months ago. I know that is BS because I am pretty sure she can quit her job and still try to qualify -- I think I know why she wants to be fired, so she can collect unemployment while she finishes qualifying or whatever you have to do to get on disability.

I am the office manager and have been out of town last week at a training seminar; my boss is wanting me to deal with this, this week. I intend on talking to the State Labor Board tomorrow, but would welcome any advice anyone might have on the following:

1) First and foremost, I definitely think we are being taken "on a ride" here by this woman. I really wonder as to the validity of this out-patient surgery claim since on the Friday afternoon before, she was just fine and then on Monday morning she comes up with the above, BOOM, no notice, etc. Any outpatient surgery that I have ever had has always been scheduled well in advance. Also, I found out last week that one of her daughters had a baby in the time frame recently preceeding this situation. This daughter is not a good person (drugs, etc) and this secretary and her husband have adopted two of the three other babies that this daughter has had and this baby is the fourth that is being born into that situation. This secretary has taken care of all these babies before and I think this new baby has a lot to do with this current "medical leave". That being said....
2) I told my boss (and he has concurred) that until we can verify her "ordered medical leave" to NOT FIRE THIS WOMAN -- We must leave her job open, until we can verify this independently with the doctor. I just don't trust this employee coming in and handing a note to us written on a prescription pad. Am I correct in assuming that we are entitled to independent verification directly from the doctor's office? (On the doctor's "letterhead", etc.) I know he won't discuss her medical condition, but since he has supposedly ordered her to be off of work for four weeks, shouldn't he verify that independently with us if we ask?
3) We are a small company (6 employees, 3 independent contractors) and we do not have a benefits package per se. The standard is policy is 2 weeks off for vacation, there is no "sick leave" as it is handled on a case-by-case basis. Normally, an employee is compensated for a day or two off for illness. We have NO DISABILITY POLICY OR DISABILITY INSURANCE, nor MEDICAL LEAVE policy, paid or unpaid. We do have medical insurance offered and we pay for it if they elect to take it (this secretary is on that policy and we pay the monthly premiums). I have a sneaking suspicion that this secretary thinks this four weeks will be paid, and we do not intend to pay her for this 4 weeks (and apparently possibly more). Am I correct in assuming that while we have to hold her job open (to prevent a wrongful termination suit) we do not have to pay her for this extended time off? We have no "paid medical leave" as a benefit nor has any other employee taken or been offered such a benefit, ever.
4) In keeping with the above, on Wednesday (the day after she supposedly had this outpatient surgery) she called up here to the office and begged my boss to send some work to her home so she could continue "helping out". I think she tried that ploy so she could say that she was still working and contend that she should be paid. If she is so sick and needs this extended medical leave, why would she call the day after her "surgery" and ask for work? My boss told her that NO, he didn't have anything to send home to her and she should "concentrate on getting well". We should absolutely, positively NOT let her pick up work, etc., right?
5) Am I correct in assuming that if she does try to come back into the office, we should have a written letter (independent on his letterhead mailed directly to us) from her doctor stating that she is cleared to come back to work? We shouldn't let her step foot in this office until we receive that, right?
6) Personally, I don't think we will ever see this woman again because like I said, she is bucking for disability and the last think someone doing that wants is a letter from their doctor clearing them for work. So..... after this four weeks is up and we don't have the letter clearing her for work, what do we do at that point? Can we terminate her then because at that point her "leave" is "unexcused"?

Thanks for any insights.

 

[AL HR]

Sorry, but I couldn't make it through your big block ' text, it's just too long.

Couple of questions:
1. Is your company subject to FMLA?
2. Is she eligible?
3. If no to either of the above, have you ever had this situation in the past for any other employee's?
4. Is this a person nder a CBA or employment contract?

If you can answer these, we can better help you.

 

[TooMuchFun4Now]

Clarification of points

Sorry,
I know my text is long, but I have tried to include as much information as possible. Too many times I see posts out here where people don't tell the "whole" story and it is hard to help them.
To answer your questions:
1) It is my understanding that our company is NOT subject to FMLA. We only have 6 full time employees and 6 independent contractors. My understanding of FMLA is that it applies to companies with 50 or more employees and we are not a public agency either.
2) Therefore she is not eligible for benefits under FMLA.
3) We have NEVER had this situation with any employee in the past. At most we have had someone (this individual) stay out for two days due to illness (she claimed she had stomach flu). We did pay her for that two days. Once again, we have no formal sick leave policy. We also have no "medical leave" policy, paid or unpaid.
4) No to either. She is not under "contract" of any sort, collective bargaining or other. A union is not involved either. She is simply a secretary hired 3 years ago on a salary.

 

[cbg]

You are correct that FMLA does not apply, and GA does not mandate disability benefits. (GA does not have a state disability plan, either, and from what you've said I seriously doubt that she'll qualify for SSDI, so she's in for a nasty shock if that's what she's anticipating.)

I have one question for you. It won't change the legality of firing her, but it might have an effect on her ability to collect unemployment. Have she received any counseling or warnings about her excessive absences? Has she been told that her job is in jeopardy?

 

[TooMuchFun4Now]

Warned about her conduct several times

Thanks cbg, that is what my understanding is (i.e., we are not covered by FMLA and state law really doesn't support her receiving any benefits.) The way I am interpreting the laws that I have read, we don't have to pay her for this extended time off and due to the way she "notified" us (coming in to work 2 hours late last Monday morning with this doctor's note --- which I am still going to verify --- informing us that she had to have at least four weeks off starting immediately. She waltzed out of the office before lunch) I still think termination is not out of the question. Believe me, if I can find any part of her story is a lie (or the note is a forgery) then I think we have grounds to fire her immediately, "with cause". I have been to unemployment hearing before and she would most likely be denied that claim then.

To answer your question, yes she has been warned several times about various incidents regarding lateness, etc. It was about the end of last summer, after she had been told to quit taking 1 1/2 hour lunches, that she suddenly cleared her desk (of personal items) and flounced into the boss's office and announced that she "knew she was going to get fired". He told her, no, she was simply being warned about some of her behavior. He asked her point blank if she was quitting and she said no. He told her to go back to her desk and get to work. It was shortly thereafter when she started talking about disability and if she was fired she could get it "easier"? I'm sure her theory is that if we would fire her she could collect unemployment while she was trying to qualify for this disability stuff. Once again, we "have cause" and it is documented.

Thanks

 

[cbg]

I did read your entire post and I'm not sure why you think you can't fire her immediately. You can; it would be entirely justified. And you most certainly do not need to pay her for the four weeks even if you do decide to grant it.

 

[TooMuchFun4Now]

New Development - Dr. Won't Respond/Verify

We have been contacting this employee's doctor this week (twice via phone -- had to leave messages, and sent a letter -- faxed it and snail mailed it) to confirm that all her medical appointments/surgery, etc. had actually occurred and that he had ordered her to take the 4 weeks off.

The doctor will NOT respond in any fashion. I think that one of two things may be going on here 1) He's just doing the "doctor thing" and taking his own sweet time about it, or 2) Maybe they don't know what I am talking about?

Regardless, we have not requested any information that I have presumed to be proprietary or confidential in natures. We have simply requested he confirm 1) the dates and times of her last two appointments (the times she took off to go see him to get this diagnosis) 2) the date of the surgery, if it occurred 3) confirmation of whether he ordered her to take 4 weeks off 4) Since she gave us absolutely NO notice of this elective, outpatient, laser surgery --- we have asked when did he order it and tell her that she would need this time off, and 5) how long does he anticipate she will be out of the office.

We haven't asked for particulars on her medical condition, etc. just confirmation of data that she related to us. The doctor will not respond to either confirm anything or deny.

We are sort of "dead in the water" as far as the path forward we need to take with this situation until this doctor gets back to us.

Any suggestions?

 

[cbg]

I'd have already canned her, and I'd certainly do it now. But if you are uncomfortable with doing so, tell her that she has X days (and I would not give her many) to provide written, verifiable confirmation from her doctor and if she does not, she's out on her ear.

There is no state or Federal law that requires you to keep her employed under these circumstances.

 

[lost_in_nc]

Biggest peoblem with just firing her is that if she indeed has missed work due to medical reasons, she will qualify for unemployment as this come under "no fault of her own". I know it sounds crazy but I had an employee that worked for me for 5 months, missed 45 days total, I fired her when she missed work dur to her mother being in the hospitol. She got unemployment. So just double check and let me know what happens.

 

[cbg]

In most if not all states, she won't be able to have it both ways in the circumstances described, at least not initially. An employee needs to be able to work, be available for work and actively looking for work before they can collect unemployment. If she legitimately is too sick to come to work for four weeks, then she's not able to work and won't qualify for UI at least for those four weeks. (I'm not saying that she won't be able to collect when she is medically cleared to return to work, which sounds like was the case for your employee.)

However, based on the facts presented here, I'm betting that she won't be able to provide any proof that she's legitimately sick, but instead is malingering. And in that case, she won't be able to collect either because work is available to her and she's refusing to do it.

 

[eerelations]

Why doesn't the OP just fire her? (Instead of going through all this folderol calling her doctor, and waiting for a response, and posting here, and discussing the situation with others, etc.)

 

[TooMuchFun4Now]

Wrongful Termination Suit Scares Us

Thank you all for your insights and the time you have taken to leave information and opinions. It is greatly appreciated.

We haven't terminated her yet, because we are trying to be VERY CAREFUL as far as the path we take forward with this situation. This woman has a LITGIOUS history. She has been embroiled in several lawsuits over the last three years that we know about. All of them involve "wrongful" stuff that she finds these attorneys that will take it on a percentage basis (a large part of what is wrong with the legal system, but we will save that discussion for another day). Everything from suing some pharmacy over not giving her the exact number of pills in one of her many prescriptions to the car wreck that started all this medical mess. She has "experience" in what I call "legal blackmail" (i.e., you ask for an amount that it tantamount to blackmail -- the opposing sides attorneys costs to defend would be slightly more than what she is suing for, so these people have "settled".)

There is no doubt in our minds that this woman would try to press a wrongful termination suit if the door was left cracked open in the slightest. IF she really does have a medical condition and had a procedure performed and IF her doctor really did order her to take four weeks off (for an elective, laser, outpatient procedure) then if we terminate her, I am certain she would try to sue for wrongful termination, especially since my boss did not terminate her right on the spot when all this went down.

Thus, we are trying to get the doctor to confirm, blah, blah, blah. I have taken cbg's idea of sending her a letter that she has 5 days from the receipt of (sent certified mail) to get her doctor to contact us directly to confirm all her stories.

She has already been notified that this four weeks she is taking off is not paid and she is not to be in the office unless she has a note from her doctor releasing her as 100% fit for work. (She tried to creep back in her this week on the pretense that she was going to "help" the temp out that had replaced her. She was immediately told to go home and not come back until she had a doctor's release.)

Another side note, we are missing some software disks from the office (we needed to reload a program that had went haywire on a computer and noticed they are gone). She has admitted to taking them and can't seem to "find" them.

 

[MyHouse]

What's your company policy on disciplinary action? Where I work, one is allowed three written warnings, put on probation, and then can be terminated if conditions are not met. If you document properly, it seems you should be able to terminate her due to poor performance and continuing to be late.

 

[eerelations]

You know what? If she's so litigious, she's probably gonna sue you no matter how carefully you tread now. She probably won't win, however it'll still cost you huge amounts in $ and wasted time to get there.

Instead of going through all that, why don't you just fire her now, give her some money (say, four weeks' pay or similar), and make her sign a release? 'Way 'way cheaper + she's gone NOW.

(Also, please note, no matter what you do/don't do, while she may sue you for wrongful termination, she won't win. Nothing in any of your posts indicates that firing her would constitute anything anywhere near what's legally defined as a wrongful termination.)

 

[Ozark_Sophist]

Since she has admitted stealing computer software from your office, fire her for cause - no need to dwell into the medical issue - and file a police report.