Seriously? – FMLA, ADA and Dangerous Assumptions

August 6, 2018

Schrodinger’s Cat – The Dangers of Assumed Intent

Today is about perspective. It is human nature to allow our beliefs or theories to color our view of a situation. How you view a situation generally impacts how you react to the situation. The same is true of the employees (you know, given they’re human too) The battle is that the theory and the facts are often not entirely the same. Fortunately or unfortunately, your reaction will then absolutely affect the final outcome. Do you behave with an assumption that your employees are fundamentally honest or that they are trying to get away with something? Do your employees behave with the assumption that you have their back or that you’re trying to get every ounce of work out of them until they drop? Are we all behaving like the cat is alive or dead?

Here are a couple of scenarios:

Is the cat dead?Is the cat alive?Open the box.
The employee has been taking FMLA leave due to migraines. The employee has to work a second job, but does not speak with the employer about ways to enable the schedules to be managed because he assumes the employer has no interest in being flexible. As a result the employee is on a hamster wheel of stress and exhaustion.The employer is experiencing an employee taking FMLA for ‘migraines’ that just happen to occur almost always the day after the employee works a shift at their second job. The employer assumes the employee is just using their approved FMLA claim for migraines to catch up on rest and is abusing the system. Their perspective causes them to start looking for other reasons to get this employee consciously or subconsciously.The migraines are a direct result of exhaustion and increased stress, induced after an 18 hour day of working two jobs and not getting to see their children. The employer and employee could have had a conversation about how to make the situation work for both of them. The result could have been a reduction in stress and exhaustion to the employee and removing the frustration for the employer having to supplement their staffing. Ultimately resulting in a more loyal, committed and strengthened relationship.
An employee has a long history of a strong work pattern, always exceeding expectations. The employee starts to take time off to care for her ailing mother and then takes an extended period of 6 weeks after a major surgery for the mother. All of the time is taken under approved FMLA.The supervisor starts giving the employee less favorable performance ratings because the employee is not meeting goals as a result of their absences. Subsequently, during a reduction in staff process, one of the requirements from corporate is that it an employee has been giving specific performance ratings. Otherwise employees are to be offered a transfer. In reviewing the employees records, there is no further assessment done by the individual making the lists and this employee returns from their FMLA leave to receive a pink slip.The corporate decision maker assumed the supervisory staff had a full understanding of how approved absences under the FMLA are to work with performance measures. Had the history of performance ratings been reviewed and somebody asked “I see this employee was stellar for 8 years and only in the last 3 evaluations had issues, is there an understood explanation?” then it would have come to light that the employee should not have qualified for job elimination.
An employee had previously worked for an employer that had a very toxic work environment where employee programs were non-existent and flexibility was not an option. The employee began to experience difficulty lifting certain weights. The employee continues to push through the task and causes damage that results in a need for medical attention and increased absences.The employer has a robust ADA team with a certified ADA Coordinator. Employees in other locations have been provided relatively inexpensive straps to support the lifting, other locations have installed machinery that carries much of the burden, and yet other individuals have had a minor job modification because of demonstrated skill strengths in other areas.Had the employee not assumed their new employer was unsupportive, then there could have been a quick, already established solution instituted. The employee would have not caused irreparable damage resulting in subsequent absences. The employer would have a productive employee who felt fortunate to be with an organization with their priorities in good order.
An employee requests time off to care for his mother in the final stages of an illness and then takes bereavement when the mother passes away. A year later and with a different supervisor, the employee leaves a voicemail that their mother was in a horrific accident and they are leaving immediately and are unsure of further details, but will be in touch. He provided his cell phone number.The new supervisor informs a manager that the employee will not be in and they are to get a temp brought in. The manager states “But, his mother died last year.” The new supervisor, in a quick rush to judgment, assumes the employee figured they wouldn’t realize that their mother had passed away last year. On day 3, in accordance with the company policy, they send a letter of termination for job abandonment. All benefits and salary were stopped immediately, resulting in multiple expenses that were auto-paid from the employees account to be rejected and cause over-draft fees.The employees mother had been in a committed, same-sex relationship for 30 years. The employee had been raised equally by the two women through his entire childhood. Had the new supervisor not assumed that there was no possibly of a less traditional family structure, he may have waited to first had a discussion with the employee and learn that his theory and the actual facts were far from the same.

I am going to break away from my normal style of breaking down a specific section of the regulations. Take a moment to ask yourself a few questions?

  • Do I make assumptions about my employees intentions?
  • Do I take every opportunity to find facts?
  • Has there been evidence in the past that the employees are assuming our intent as an employer?

Many years ago, I heard a term that I carry with me through both my personal and professional dealings that has served me well. The term is ‘Unconditional Positive Regard’ which basically means, if I am in a situation where I do not have all of the facts, I have the choice to assume that the information I do not have is negative or it is positive. Therefore, I unconditionally regard the situation as positive until it is proven one way or the other. So, the next time you send a lengthy email to somebody with a question involved and their response is “Yup, if that’s what you think” you can assume they are being curt and not particularly supportive or you can assume they were being glared at by the flight attendant for still having their phone out, but found your issue to be of high importance and worth a response before you left the office for the day and they headed out on a trip that would make them highly unreachable.

What can you do to ensure your employees do not have an assumption of negative intentions?