HR Solutions

By Shari Lau, Margaret R. Fiester and Ruhal Dooley Jul 1, 2006

HR Magazine, July 2006

FMLA Designations, Angry Workers, Temps Status

Q: I have an employee who will be off work because of surgery. Do we have to designate this as FMLA leave if she doesn't want us to?

A: You are not required to, but you may. The employer is permitted to designate qualifying leave as time off under the Family and Medical Leave Act (FMLA) without the employee’s consent. There are certain related matters to consider, however, when developing and applying your leave policy.

When an eligible employee working for an employer covered by the FMLA takes leave for a purpose covered by the law, the employee’s job and benefits are protected by that statute, regardless of whether the employer designates it and counts it toward the FMLA entitlement, unless the employee already has used 12 weeks of FMLA leave during the year. Therefore, it is wise to designate all FMLA-qualifying leave as FMLA.

If an employer wishes to, or is required to, provide leave for more than 12 weeks of protected annual leave (e.g., leave under the Americans with Disabilities Act [ADA] and/or state leave laws), the policy may specify that such additional, non-FMLA-qualifying leave will be used once the FMLA leave has been exhausted.

Alternatively, an employer may opt to draft a policy permitting an employee to miss “X” number of days before the FMLA will go into effect. That also would be fine as long as the ADA, state leave laws and other legal obligations still are satisfied even after FMLA leave has been exhausted. Just make sure that the policy is applied evenly throughout the company—and that no exceptions are made—to ensure equal treatment.

One note: An employer’s failure to designate leave as FMLA may not automatically entitle the employee to more than 12 weeks of protected leave under the law (see Ragsdale v. Wolverine Worldwide Inc., 535 U.S. 81 (2002)). Nevertheless, it is recommended that an employer ensure that its policies and practices actually reflect what the company wishes to offer in terms of protected leave.


Q: We have an employee who blows her top and yells at co-workers at the drop of a hat. What are our options in dealing with her?

A: Angry employees are found on every rung of the corporate ladder, from entry-level workers to top-level executives, and we have all been unfortunate enough to encounter them—the fist-pounding, apoplectic “screaming meemies.” These are people who not only instill fear in the targets of their wrath but also intimidate others, who may end up being too fearful to lodge a complaint.

Sometimes these workplace bullies get away with their behavior for so long that they may think they are immune to repercussions. However, as the employer, you can encourage and sometimes even require employees to attend anger management sessions.

You may wonder if anger is a disability under the Americans with Disabilities Act (ADA). Bear in mind that to be protected by the ADA, the individual must have an impairment that substantially limits a major life activity, must be regarded as having a disability or must have a history of disability.

Unpleasant personality traits make a person difficult to get along with, but often they are not related to any substantial limitation on major life activities and frequently are not indicative of psychiatric conditions. Anger, however, could indicate post-traumatic stress disorder or another psychological condition that would be a disability if it substantially limits a major life activity.

Nevertheless, the ADA protects only qualified individuals with disabilities, and employees who want to be reasonably accommodated should ask for a workplace adjustment—not mouth off. And even if an angry worker has an ADA disability and has requested an accommodation, the law would not shield the worker from standard discipline for misconduct.

The best approach with a disgruntled worker might be first to counsel the employee; if that isn’t successful, encourage the individual to attend anger management sessions. Ease into the conversation with some positive comments, state the problem and be ready to back up your points with documentation or examples.

A sample script: “Mary, you’ve been doing a great job on Project X, and we appreciate your energy and commitment, but we have some concerns about your management style, and we’d like to discuss them with you.”

Health plans typically don’t cover anger management treatment. While some companies may require employees to pay for treatment themselves, the employer or employee assistance program usually picks up the tab.


Q: How long can an employee retain temporary status before we have to consider the employee regular?

A:The employer defines “temporary” and determines the length of time an employee has to work in order to be classified as other than temporary.

There are a few things to consider when classifying employees. Among them:

The head count. Temps often count toward the number of employees considered when determining whether an employer is covered by certain laws. For example, according to a Department of Labor opinion letter, when determining if the company meets the 50-employee threshold for being subject to the Family and Medical Leave Act, the employer should include temporary workers if there is a continuing employment relationship.

Claims of discrimination. While employers may discriminate in the administration of fringe benefits on the basis of job classifications (e.g., exempt, nonexempt, temporary, regular, full-time and part-time), employees doing similar jobs should be treated similarly with regard to their benefits to avoid claims of unlawful discrimination.

The 1,000-hour rule. Even employees classified as temporary can participate in an employer’s pension plan after completing 1,000 hours of service within a 12-month period.

Hiring temps through an agency may have advantages over hiring temps directly, but it is by no means a cure-all, because federal and state laws can supersede the terms of agency-client contracts. Employers should have clear policies on the status of temporary employees and should set specific time limits for temporary assignments.


Shari Lau, SPHR, GPHR, is manager of the Society for Human Resource Managements Information Center. Margaret R. Fiester, SPHR, and Ruhal Dooley, SPHR, are information specialists in the center.

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