Strategies for Handling Real Life FMLA Abuse
The Family and Medical Leave Act ("FMLA") provides a means for employees to balance their work and family responsibilities by taking leave for certain reasons, like the birth of a child or to care for an immediate family member who suffers from a serious health condition. Like many well-intentioned laws, however, some employees abuse the rights granted under the FMLA and have used FMLA leave to vacation on the beach or to extend a long weekend. This article will provide scenarios which illustrate common suspicious FMLA leave situations, and then will outline strategies to help prevent potential FMLA abuse.
Scenario #1: Caught Red-Handed: Facebook Pictures During FMLA Leave Sara began taking intermittent FMLA leave related to worsening knee pain from a leg injury she sustained ten years before. During one of Sara’s FMLA absences, several of her coworkers saw pictures of Sara drinking at a local festival posted on Facebook and showed the pictures to Sara’s supervisor. You check her certification, which indicates that her physician certified the need for leave based on her inability to engage in physical activities.What should you do?
Don’t Jump to Conclusions or Rush to Terminate.Even if it appears that an employee has been caught red-handed, you should still conduct a complete and exhaustive investigation of the facts. When employers don’t afford an employee with some level of due process, the risk of litigation and an adverse ruling increases significantly. In Jaszczyszyn v. Advantage Health Physician Network, an employer was faced with a similar scenario and provided a good example of how an employer should respond. In Jaszczyszyn, the employee was out on FMLA leave for back pain but was posting pictures on Facebook at a local Polish festival. After learning about the pictures, the employer did not rush to terminate her on the spot. Instead, it invited her back to work to discuss her leave of absence. During the meeting, the employer confirmed the scope of Jaszczyszyn’s need for FMLA leave, asked her to explain what her limitations were, had her acknowledge the company’s policies regarding fraud, and then showed her the Facebook pictures. Jaszczyszyn’s response was that she "was in pain at the festival and was just not showing it." Ultimately, the Sixth Circuit Court of Appeals upheld a lower court’s decision that the employee’s response was not enough to prevail in the face of the employer’s honest belief defense.
Implement a Policy Prohibiting Misrepresentations and Dishonesty.Courts are reluctant to accept employees’ FMLA claims in cases where the employee lied to or misled an employer. In another similar case, Lineberry v. Richards, a nurse was out on FMLA leave for an injury, and was fired after Facebook posts showed her vacationing in Mexico. Her doctor certified the need for leave due to substantial lifting and mobility restrictions, and later certified her vacation to Mexico and stated that the trip was not physically demanding and would not conflict with her recovery. However, several photos posted to Facebook showed her riding in a boat and lying on her side on a bed holding up two bottles of beer in one hand. After coworkers told the nurse’s supervisor about the photos, the supervisor emailed the nurse saying that, since she was well enough to travel on a 4+ hour flight and wait in customs, she should be well enough to come back to work. In response, to the nurse claimed that she rode in a wheelchair in the airports and through customs and was unable stand for any length of time. However, when the nurse finally returned to work, the employer showed her the Facebook photos and the nurse admitted that she had lied about using a wheelchair. The employer then terminated her for violating the company’s policy on dishonesty and for misuse of FMLA leave. The nurse filed suit claiming FMLA interference and retaliation, but a Michigan federal court ruled that the employer had the right to fire her for dishonesty. The court also explained that, even if the nurse had not admitted to lying about the wheelchair, the employer’s honest belief that the nurse was lying and misusing her FMLA leave would have supported the termination decision.
Scenario #2: Monday/Friday Migraines John is a receptionist who is absent at least 3-4 days a month due to what he claims are bad migraines. He has provided certification from his physician that confirms that he suffers from a medical condition that will cause him to be out 3-4 days a month due to migraine episodes; however, you are noticing that nearly all of his absences are on Mondays and Fridays. Due to lack of staff to fill in for John at the last minute, it is difficult for the office to run in his absence.What should you do?
Request Recertification.Recertification is one of the best tools available here. As a general rule, employers may request recertification no more than every 30 days and only in cases where the employee has actually been absent from work for the FMLA-covered medical condition. However, employers may request recertification in less than 30 days if:
- The employee requests an extension of leave;
- Circumstances described by the previous certification have changed significantly; or
- Information is received that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.
In addition, where there is a specific pattern of leave, as described in this case, employers can provide a copy of the employee’s recent attendance record to the certifying physician to inquire whether the pattern of leave is consistent with the employee’s actual need for medical leave.
Establish a Call-In Policy.To help reduce the effects of last minute no-shows, employers may enforce company call-in procedures, even when leave is unforeseeable. The regulations specifically provide that an employer may require, as part of its policies, that an employee provide written notice of the need for leave and call in all absences. Where an employee does not comply with its employer’s requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. For example, in Ritenour v. Tennessee Department of Human Services, an employer properly applied its call-in policy to discipline and ultimately terminate an employee that took FMLA leave to care for her child, but, while taking several days off to do so, did not call in her absences as required under the employer’s call-in policy. The Sixth Circuit Court of Appeals upheld the lower court’s decision, which concluded that, because the employee was well aware of the obligation to call in, failed to follow the policy, and failed to establish that an "unusual circumstance" prohibited her from complying, she was in violation of her employer’s policy and subject to discipline. This was particularly true because the employer’s policy required adequate notice for any form of absence, not just absences covered by FMLA.
Transfer the Employee to an Alternative Position.Depending on the employee’s position, habitual Monday and Friday absences may significantly affect the operations of the business, especially if the employee is the only one fulfilling that job function or is difficult to replace. As a result, it may be in the employer’s best interest to assign the employee to an alternative position that causes less disruption in the normal operations. While transfers are permitted, employers must make sure pay and benefits remain the same and that the transfer is not punitive in nature.
Scenario #3: FMLA Leave or Extended Vacation? Denise, a secretary at your company, requests FMLA leave for surgery pursuant to the company’s policy. You approve the request. A few weeks after the surgery, you find out that Denise, while out on leave, has traveled to the Bahamas to "help her recuperate" for a week.What can you do?
Establish a Policy Requiring Employee to Remain in Vicinity of Home.In Pellegrino v. Communications Workers of America, the Third Circuit Court of Appeals upheld an employer’s policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave. The policy allowed an employee to travel outside of the immediate vicinity of their home only for medical treatment, family needs, and with the prior consent of the employer. While on leave, the employee traveled to Mexico and stayed for a week. There was no medical or family reason for the trip, nor had she secured her employer’s consent to travel outside the immediate vicinity of her home during leave. The employer terminated her for violation of the policy. The court determined that the termination was legitimate based on the policy violation and reasoned that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."
Maintain Communication.Most employers have a greater success of preventing FMLA abuse when they maintain regular contact with an employee on FMLA leave. What is considered an appropriate form of "contact" is unique to each situation, but can consist of periodic phone calls by the employer or a requirement that employees periodically report on their status and intent to return to work. "Periodically" is not clearly defined, so employers must be cautious when requiring updates or calls too frequently. In addition, employers should be careful not to take an aggressive approach. For example, in Terwilliger v. Howard Memorial Hospital, a federal district court in Arkansas explained that, while FMLA regulations specifically authorize employers to require employees on FMLA leave to report periodically on their status and intent to return to work, weekly calls to an employee may constitute FMLA "interference" if the employee feels "discouraged" from taking FMLA leave. To reduce the risk of an FMLA interference claim like Terwilliger’s, employers should make sure all employees receive the company’s FMLA policy and are advised of their rights, ensure that the company’s policy specifically states when employees will be contacted or required to provide status updates, adjust the frequency of contact based on each individual situation, and train management personnel who will be communicating with the employee to make sure they do not give employees the idea that they are discouraged from taking FMLA leave and being forced to return to work.
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