FMLA Insights - Abuse of FMLA leave

Giants Beat Patriots in the Super Bowl! Can I take FMLA Leave Today?

Jeff Nowak — Mon, 06 Feb 2012 07:26:14 -0600

Monday, February 6, 2012 is a bittersweet day for employers across New York and elsewhere. Just hours earlier, their employees watched the New York Giants beat the New England Patriots in Super Bowl XLVI. For these employers, however, many of their employees won't be at work Monday morning. The reason? In a 2008 survey conducted by The Workforce Institute at Kronos Incorporated, 1.5 million people will call in sick to work and an additional 4.4 million will call in late. Outplacement firm Challenger, Gray & Christmas has put worker lost productivity from the Super Bowl at more than $820 million.

“There will be lots of workers partying all night,” John Challenger told Bloomberg BNA (subscription required), “either celebrating the team's win or crying in their beer—not ready for work on Monday morning.”

Employers in and out of New York and New England will have to be prepared for the apparent onslaught of call offs the day after the Super Bowl. Many of these employees certainly will use the FMLA as an excuse to recover from the night before. So, what can an employer do to obtain more information from the employee in these situations to avoid FMLA abuse? I remind employers of the same suggestions I offered in this post one year ago:

1. Determine first whether the employee is seeking leave that might be covered by the FMLA. Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it's an absence that clearly does not trigger the FMLA (e.g., "I'm sick," or "My daughter has the flu"), you simply can subject this absence to your usual attendance policies and take action as necessary.

Unfortunately, it's not always that easy. Employees typically are not required to cite specifically to the "FMLA" as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that manifests itself intermittently throughout the year; c) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

2. Prepare a list of probative questions you ask of all employees when they call in to report an absence. The employer has the right to know why the employee cannot report to work. During the call with the employee (or when you call them back after they've left you a voicemail reporting their absence) you should inquire about:

The specific reason for the absence
What duties of the job they cannot perform
Whether they will see a doctor for the injury/illness
Whether they have suffered from this condition before and previously taken leave for it. If so, when?
When they first learned they would need to be absent
The expected return date (or time, if less than a day)

3. If this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option. Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays? Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately. Moreover, if you are concerned about Monday/Friday absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

For more thoughts on combating suspected FMLA abuse, click here.

For the rest of us (who are Chicago Bear fans, of course), better luck (and a lot of it!) next year.

Employee Who Abused FMLA Leave Around the Holidays Properly Terminated

Jeff Nowak — Fri, 26 Aug 2011 00:40:00 -0600

Employers often complain that they see an uptick in the use of sick leave and FMLA leave around the holidays. In the case of Southwest Airlines, however, one employee clearly took FMLA misuse a bit too far.

Douglas Rydalch was a reservation sales agent for Southwest. When Southwest closed its reservation center in Salt Lake City where Rydalch worked, it transferred him to Houston. However, his family remained in Utah. In 2004, Rydalch injured his back, and these issues continued through 2007. Curiously, Rydalch’s back issues tended to flare up on the days just before or after his previously scheduled time off -- 35 times, to be precise. What’s worse, he often used FMLA leave on important dates and holidays. In 2007, for example, he used FMLA leave in conjunction with July 4, Labor Day, Thanksgiving Day, Christmas Day, New Years Eve and his own birthday. I’m not kidding.

Southwest caught onto the pattern of Rydalch's absences and began monitoring his FMLA use. It learned that he had a habit of taking flights to and from Utah on the days he requested FMLA leave. On Christmas Eve 2007, Rydalch's supervisor learned that he again had taken FMLA leave and later learned that Rydalch had been out of town when he called in his absence. Upon further investigation, the supervisor determined that Rydalch booked a trip to Utah from December 22 to 27. Thereafter, it was not surprising when Rydalch also called off for a bad back on December 26 and 27, which were his next two scheduled work days. Southwest suspected that Rydalch misused FMLA leave in violation of the Company's attendance program. After an internal hearing was held regarding his FMLA use (pursuant to the bargaining agreement governing Rydalch's employment), Southwest terminated Rydalch's employment because he abused FMLA leave.

When Rydalch later filed a lawsuit claiming FMLA retaliation and interference, Santa was waiting at the courthouse steps with a lump of coal. In quickly disposing of his lawsuit, a federal court in Utah held that Southwest rightfully had an honest belief that Rydalch was abusing FMLA leave and that its termination decision was legitimate. See court decision here: Rydalch v. Southwest Airlines (pdf).

Insights for Employers

Southwest Airlines isn't considered one of the best places to work for nothing. An employee who not only abuses FMLA leave, but does so to effectively extend personal time off, raises the ire of co-workers. Their actions can only have a negative impact on employee morale. When you dare to take action as Southwest did in this instance, you not only rid yourself of FMLA abuse. You also enhance employee morale. Employers can learn much from Southwest's response here:

To some extent (whether great or small), FMLA abuse affects every workplace. Consequently, employers must be vigilant to identify patterns of abuse and act swiftly to investigate and stop it from occurring. The costs of ignoring FMLA abuse are far more dear -- they impact employee morale and inflate overtime costs because other employees are left to pick up the slack.
Where FMLA abuse is suspected, an employer has every right to investigate the circumstances and take action if it honestly believes that the employee has engaged in FMLA abuse. All too often, employers in Southwest's situation feel powerless. They live with the misconception that they cannot question the employee's reason(s) for leave or investigate any suspicious activity on the employee's part. To the contrary, the FMLA regulations give employers fairly broad rights to inquire about an employee's reasons for leave and monitor patterns of suspected leave misuse to ensure that the employee's leave is legitimate.
Where possible, consider having an objective participant review and play a role in the investigation and disciplinary action to further bolster the employer's legitimate, non-discriminatory reason for taking action against the employee. Not all employers have the level of due process that Southwest's bargaining agreements afford, but courts tend to give even greater deference to an employer's termination decision where objective decisionmakers are part of the process.

Will Employers Soon Use GPS to Catch FMLA Abuse?

Jeff Nowak — Fri, 22 Jul 2011 00:40:00 -0600

Earlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement's placement of a GPS devise on a suspect's vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment. This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act.

Clearly, FMLA abuse can literally turn a workplace on its head. I have worked with many an in-house counsel and HR professional who would do just about anything -- ahem, anything -- to bring these FMLA abusers to justice. But GPS? It's an interesting thought, but presently does not enjoy the support of any case law. The closest the courts have come to address the issue has involved the use of private investigators to follow employees using FMLA and to report their findings to the employer. However, as our friends in Texas point out, data from a Global Positioning System may very well be the next frontier for discovery during litigation. For instance, might we subpoena GPS or "Onstar" data during the discovery period so as to defend our employer clients in the future? If we can legally do so, absolutely!

Insights for Employers

In the meantime, employers, let's not get ahead of ourselves. Until the courts provide more guidance on the (legal) use of GPS tracking of FMLA leave, we might consider implementing these options first:

Check in on the employee while he or she is on FMLA leave. My clients have far greater success combating FMLA abuse when they maintain regular contact with an employee who is out on FMLA leave. You need not approach this practice in a combative kind of manner -- maintain a "check-in" policy for employees out on leave, and apply it in a consistent manner. That said, be mindful of our previous post regarding Terwilliger v. Howard Memorial Hosp., in which the court found that "weekly calls" to the employee may constitute FMLA interference because it could have the effect of discouraging FMLA leave.
Certify and re-certify. The certification process is your best tool to fight FMLA abuse. Thus, where the pattern or duration of leave changes, obtain re-certification.
Surveillance. Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest. Before heading down this path, make sure it is consistent with your personnel policies (courts typically want to know that employees have been on notice of the possibility of surveillance) and any applicable collective bargaining agreements. Where a CBA is involved, surveillance arguably needs to be bargained with the union.
Enforce call-in procedures and where the employee does not meet them, follow your disciplinary policies (unless the employee was unable to notify due to unusual circumstances).
Personal certification. Some employers have required as part of their usual and customary practice that an employee sign a "person certification" acknowledging that he/she took time off for FMLA or another medical reason. If the employee fails to provide one, or takes leave inconsistent with the stated reason on the personal certification, it can be grounds for discipline.
Keep training your managers. Front-line managers often are ill-equipped to identify the possible need for FMLA leave and to interact with the employee to obtain lawful information about their medical condition to which the employer is entitled. Employers reduce the risk of litigation and ultimately save money when they train all managers to properly manage an employee with a medical condition.

Employee's FMLA Claim Dismissed After Taking a Trip to Cancun

Jeff Nowak — Tue, 24 May 2011 00:18:13 -0600

Employees should think twice before setting off on a Cancun vacation while out on FMLA leave. In an FMLA decision that smacks of pure common sense, a federal court has upheld an employer's reasonable work rules that restricted an employee's travel outside the immediate vicinity while on FMLA leave. Pellegrino v. CWA (pdf).

The Facts

Denise Pellegrino, a employee of the Communication Workers of America (CWA), informed CWA that she needed to undergo a hysterectomy. CWA approved Pellegrino for FMLA leave, an absence which ran concurrently with paid sick leave. Shortly thereafter, Pellegrino scheduled her surgery, and both her unpaid FMLA leave and paid sick leave began.

About two weeks after surgery, Pellegrino took off for Cancun, Mexico for one week. Pellegrino did not inform CWA that she would be leaving the country, nor did she request permission to travel. This was significant because CWA's work rules specifically required employees to "remain in the immediate vicinity" of their home while utilizing sick leave, unless they were seeking treatment or attending to "ordinary or necessary activities directly related to personal or family needs." An employee also could leave the immediate vicinity if they received express permission from CWA.

CWA found out about Pellegrino's trip to Cancun and terminated her employment because she traveled to Cancun while on FMLA and disability leave in violation of CWA’s leave policies and work rules.

The Court's Decision

Pellegrino sued, claiming that CWA's decision to terminate her while on leave interfered with her ability to use FMLA leave. Conversely, CWA argued that it terminated Pellegrino's employment not because she was on FMLA leave, but because she took unapproved travel to Cancun while utilizing sick leave. As such, her conduct violated the Company's leave policies and work rules. According to CWA, it would have terminated her employment whether or not she was on FMLA leave.

Notably, although the court agreed that Pellegrino’s leave was protected by the FMLA (and that CWA had, in fact, provided FMLA leave), it held that CWA had the right to enforce its own leave policies, which in this case, required that Pellegrino receive permission to travel outside the immediate area. The Court reasoned that Pellegrino's conduct would have been improper whether or not FMLA leave was involved. According to the court, this is all the more true where an employer has adopted policies designed to prevent FMLA abuse:

[T]he FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of the FMLA leave . . .

Further, 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.

Insights for Employers

It is worth comparing this case with the Tayag v. Lahey Clinic Hospital, in which an FMLA claim was dismissed after the employee traveled to the Phillippines to meet with a faith healer and spend significant time visiting family. In Tayag, the court dismissed the FMLA claim largely because the plaintiff was not seeking treatment, but rather, taking a vacation. Here, the court found that a Cancun vacation could be consistent with the need for FMLA leave. A scary precedent, I think.

Nevertheless, in addition to serving as good precedent for employers, this decision reminds us of a few golden rules when it comes to FMLA administration:

Obtain complete and sufficient medical certification regarding an employee's serious health condition, including information about treatment plans (which very well could tip you off to the possibility that the employee may be looking to schedule a trip to a remote sandy beach while on FMLA leave)
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 FMLA and non-FMLA 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. For an example of how this is done correctly, follow the employer's lead in Righi v. SMC Corp., which we highlighted a few months back.
As CWA did here, conduct a thorough investigation and allow the employee to explain the trip to Cancun before making the knee-jerk decision to terminate. Although your failure to do so likely would keep your employment attorney in business, we want to make sure you stay in business first.

Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

Jeff Nowak — Mon, 04 Apr 2011 00:02:00 -0600

In this opening weekend of major league baseball, hope springs eternal for every baseball fan. In honor of my beloved Chicago White Sox, I offer an FMLA lineup card below that from top to bottom will help employers stay atop the pennant race throughout the year.

[First, feel free to play the National Anthem if you so desire...]

From the Leadoff Hitter to the end of the lineup, here are my FMLA All Stars:

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Leadoff Hitter: Draft and maintain a comprehensive FMLA Policy. Many employers do not maintain an FMLA policy, choosing instead to provide their employees the rather simplistic one-page DOL Poster, which often raises more questions than answers. A robust FMLA policy advises employees of their rights, contains provisions you can point to when answering your employees' questions about the Family and Medical Leave Act, and helps you minimize legal risk.

Two hole -- Bunting the Runner Over: Use the appropriate FMLA notices and forms. Get yourself in scoring position by providing timely notice to an employee who requests leave that may be covered by the Family and Medical Leave Act. Keep in mind your obligations to provide the FMLA Notice of Eligibility (pdf), medical certification(pdf) form and Designation Notice(pdf). Many employers still do not use these forms correctly or within the time frames established by the FMLA regulations. Don't be that employer!

Three hole -- Getting the Runner In: Prepare a call-in script of questions you ask an employee whenever he/she seeks leave so that you can determine whether the leave request might trigger the FMLA. Probative, but appropriate, questions are not only allowed under the regulations, they should be expected. 29 C.F.R. 825.303(b). See a previous post of ours on this topic.

Clean Up: Use the medical certification process to your advantage. Looking to hit a grand slam?Medical certification is perhaps the single best tool available to employers to determine the reason(s) for the employee's need for leave and to weed out FMLA abuse.

Your RBI Hitter: Seek recertification whenever appropriate, particularly where intermittent leave is involved. Generally speaking, employers can obtain recertification every 30 days, except where the healthcare provider indicates that the duration of the condition will last longer. However, an employee's pattern of absences often is inconsistent with the information provided on the medical certification, which gives the employer the right to seek recertification immediately. Seeking recertification: a) ensures that the employee's absence actually is covered by the FMLA and that you are properly tracking and designating these absences; and b) puts the employee on notice that they will be expected to provide continued and accurate certification about their medical condition. Employers who regularly recertify tend to beat FMLA abuse far more often than those who choose not to recertify.

Backing up the Five Hole to Get the Run In: Follow up with the employee when medical certification is incomplete or inadequate. Come clean: how many of you simply give up and designate leave as FMLA protected no matter what kind of information you receive from the employee? Don't fall into this trap! When you receive medical certification that contains blanks or does not provide you adequate information to determine (for instance) why the employee needs leave, the duration of leave, the medical facts supporting leave, and the need for leave in the future, immediately follow up with the employee to obtain this information.

Underperforming 7th Hitter: Authenticate and clarify FMLA medical certification. When an employee's FMLA medical certification is incomplete or inadequate, the regulations give the employee two options: a) cure the deficiencies in the certification; or b) allow the employer to contact the employee's health care provider. As an employer, why not use these options to your advantage? If the employee is not cooperating, obtain permission to clarify their certification. If the employee does not give permission and does not otherwise cure the deficiencies in the certification, the employer may delay or deny leave.

Underutilized 8th Hitter: Train your managers about their responsibilities under the Family and Medical Leave Act. Who runs into FMLA-related issues more often than the Human Resources Department? Usually the front-line supervisor who fields the call off, or watches the employee leave mid-shift because the migraine headache is acting up again. These supervisors are in the best position to ask the questions necessary to determine whether the absence triggers the FMLA, or to direct the employee to Human Resources. These supervisors do not know where to begin unless they are properly trained.

The "Second" Leadoff Hitter: Enforce usual and customary call-in procedures. Under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer's call-in procedures. Employers: This is a big deal! If your call-in policy requires the employee to call in a certain amount of time before the shift starts to report an absence, and the employee fails to follow this policy, you can deny FMLA leave (and subject the employee to discipline under the attendance policy) absent an unusual circumstance.

It's a bit early in the season to talk trash. But with these FMLA All Stars in place, it won't be long before your confidence in administering FMLA soars. Until then, bring on baseball!

An Employer's FMLA Nightmare? Hooters Offers Fake "Doctor's Notes" to Skip Work During NCAA Tourney

Jeff Nowak — Thu, 17 Mar 2011 12:34:31 -0600

Over the upcoming weeks, when Carl the Custodian is missing from your workplace, you may want to give your local Hooters Restaurant a call. He just might be there watching the NCAA tournament.

Hooters has unveiled a marvelous marketing ploy to get customers through their doors during the NCAA tournament -- the Company is offering doctor's notes excusing employees from work on March 17 and 18 for any one of a number of basketball-related "medical" issues. Of course, the doctor's note, entitled "Hooters National Hooky Day," is fake and nothing more than a ploy to rake in a larger share of college basketball fans. In fact, Hooters' official Rules (pdf) make it clear that the employee should look for alternative employment if he/she submits the doctor's note as "an actual excuse to stay out of work."

But Hooters clearly is onto something. According to a report by Challenger, Gray & Christmas, Inc., an outplacement firm, employee time spent viewing NCAA tournament games online during the work day will cost employers 8.4 million hours in lost productivity which, when multiplied by “the average hourly earnings … among private-sector workers [makes] the financial impact exceed $192 million.”

Take your best guess as to how FMLA leave will be impacted by the NCAA tourney. Suffice it to say, however, that HR professionals and leave administrators may have a busy next couple of weeks. To combat Family and Medical Leave Act abuse during the NCAA tourney (and throughout the year), feel free to browse our previous posts on the topic here and here.

Did Weekly Calls To Employee Interfere With FMLA?

Bill Pokorny — Tue, 15 Feb 2011 08:17:05 -0600

That is the question a federal district court in Arkansas recently held would have to be resolved by a jury, and one that should concern any employer seeking to control the abuse of FMLA leave. Terwilliger v Howard Mem Hosp.pdf

The Facts

Regina Terwilliger worked for Howard Memorial Hospital for approximately two years, first in the kitchen and then in housekeeping. In November 2008, Terwilliger submitted a request for FMLA leave because she needed back surgery. Her request was approved and she underwent surgery on January 29, 2009. She was released to return to work without restrictions on February 12, 2009 and returned to work on February 16, 2009, having used eleven weeks of FMLA leave.

During her recovery, Kim Howard, Terwilliger's immediate supervisor, contacted Terwilliger weekly to inquire when she was going to return to work. According to Terwilliger, during one call, she asked Howard if her job was in jeopardy, and Howard replied that she should return to work as soon as possible. Terwilliger asserted that she felt Howard was pressuring her to return to work. She also testified that Gayla Lacefield, the hospital's HR director, discouraged her from using FMLA leave by telling Terwilliger not to tell anyone that she had informed Terwilliger of her FMLA rights.

]]>Before Terwilliger's FMLA leave, several hospital employees had reported that money was stolen from their desks or lockers. No money was stolen while Terwilliger was off of work. In December 2009, hospital management placed a camera on the desk of Angie Hansen, one of the employees who reported stolen money. In March 2009, the camera captured another housekeeping employee opening Hansen's desk drawer, removing something, and placing it in her pocket. A few days later, the camera captured Terwilliger in Hansen's office. The hospital contends that the video showed Terwilliger opening Hansen's desk drawer, re-opening it, and closing it without taking anything. Terwilliger claimed that she was merely pulling a trash can out from behind the desk and denied opening the desk drawer. However, it was clear that Terwilliger was pulling something out from behind the desk, and that she was not assigned to clean Hansen's office on that day. The hospital terminated both Terwilliger and the other employee caught on camera in Hansen's office.

The Lawsuit

Terwilliger filed suit against the hospital, alleging that she was fired in retaliation for exercising her rights under the FMLA and that the hospital interfered with her FMLA rights by pressuring her to return to work while she was on leave. The hospital moved for summary judgment as to both claims.

The district court rejected Terwilliger's retaliation claim, holding that regardless of whether Terwilliger actually stole anything from Hansen's desk, her supervisor reasonably believed that she attempted to do so, and Terwilliger failed to show that the stated reason for her termination was a pretext for retaliation.

With respect to Terwilliger's interference claim, the hospital argued that Terwilliger was never denied any benefits to which she was entitled under the FMLA, as she returned to work only after her doctor released her to work without any restrictions. The court rejected this argument, holding that Terwilliger "had a right not to be discouraged from taking FMLA leave." In light of Terwilliger's testimony, the court found that "a reasonable jury could conclude that Defendants interfered with Plaintiff's exercise of her FMLA rights by discouraging or chilling her exercise of those rights."

Insights for Employers

The court's decision in this case is obviously troubling for employers who need to follow up with employees on FMLA leave. The FMLA rules specifically authorize employers to require employees on FMLA leave to report periodically on their status and intent to return to work. However, the ruling in Terwilliger seems to suggest that requiring such reports may constitute "interference" if the employee merely feels "discouraged" from taking FMLA leave. Unfortunately the court's decision does not grapple with these issues.

Employers can, however, take some steps to reduce the risk of an FMLA interference claim like Terwilliger's:

Make sure that all employees receive your FMLA policy and are advised of their FMLA rights as required by the regulations.
Ensure that your FMLA policy and notices specifically inform employees that they will be required to provide regular status reports while on FMLA leave.
Tailor the frequency of these status reports to an employee's actual situation. While weekly or even more frequent reports may be appropriate in some cases, in others it may be sufficient to communicate with the employee every other week or even less frequently.
Most importantly, train any management personnel who will be communicating with employees on FMLA leave to ensure that they do not improperly pressure employees or suggest that an employee's job may be in jeopardy if he or she remains out on FMLA leave. Consider having HR personnel, rather than supervisors, conduct these communications.

Suffering from Super Bowl-Induced FMLA Leave?

Jeff Nowak — Mon, 07 Feb 2011 07:58:58 -0600

This morning, the sound of the morning alarm was harsh reality for scores of employees throughout Wisconsin. After celebrating a Packers Super Bowl victory late into the night (a bitter pill for this Bears fan to swallow!), they have no interest in dragging themselves out of bed and heading into work. For employers, you need not be located in Wisconsin to suffer the effects of the Super Bowl. Case in point -- I was talking with an HR professional (located outside of WI.) last week who was not looking forward to the day after Super Bowl Sunday, when she spends much of her day processing leave of absence requests -- nearly all of which come from employees who called off right before the Monday morning shift started.

Some of the employees have fairly legitimate reasons for their absences ("My son, Johnnie, ate Aunt Erma's chili last night and he can't keep anything down this morning); others phone in ambiguous reasons such as, "I am taking FMLA again today," or "Remember that thing I was dealing with three weeks ago ... well, it's acting up again."

For HR professionals, the employer response to these phone calls is one of the most difficult they face: Do I count this as an ordinary sick day? Do I ask for more information? Can I ask for more information? What precise "thing" is "acting up" again? Does this information trigger FMLA leave?

What can an employer do to obtain more information from the employee in these situations?

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Determine first whether the employee is seeking leave that might be covered by the FMLA. Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it's an absence that clearly does not trigger the FMLA (e.g., "I'm sick," or "My daughter has the flu"), you simply can subject this absence to your usual attendance policies and take action as necessary.

Unfortunately, it's not always that easy. Employees typically are not required to cite specifically to the "FMLA" as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that manifests itself intermittently throughout the year; c) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

Prepare a list of probative questions you ask of all employees when they call in to report an absence. The employer has the right to know why the employee cannot report to work. During the call with the employee (or when you call them back after they've left you a voicemail reporting their absence) you should inquire about:

The specific reason for the absence
What duties of the job they cannot perform
Whether they will see a doctor for the injury/illness
Whether they have suffered from this condition before and previously taken leave for it. If so, when?
When they first learned they would need to be absent
The expected return date (or time, if less than a day)

If this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option. Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays? Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately. Moreover, if you are concerned about Monday/Friday absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

As FMLA Absences Mount, the Employer Must Lay Down the Law

Jeff Nowak — Mon, 31 Jan 2011 04:00:00 -0600

Cook County, Illinois (the county in which Chicago is located) currently faces one of the largest budget deficits in its government's history. So, when the Cook County Board president (Toni Preckwinkle) tells the County Sheriff (Tom Dart) to cut $70 million from his budget, it tends to grab people's attention. In this story, however, this proposed budget cut took a back seat to a notable statistic that grabbed the headlines: one out of every five employees in the sheriff's office takes FMLA leave on any given workday. At the Cook County Jail, it's one in four, as reported by the Chicago Tribune.

Before you are left aghast at these figures, allow me to point out a sad fact: the Cook County Sheriff is not alone. In my experience, I find all too many employers that suffer through FMLA absenteeism percentages well above the single digits. In fact, a new client shared with me that as much as 30% of its workforce is absent on any given workday, the far majority of which is FMLA-related.

When I hear of FMLA absenteeism figures as high as these, one thing is abundantly clear: FMLA abuse is rampant in that workplace. Fortunately for employers in this situation, there are several tools available to turn the tide and take back your workplace.

]]>What Steps Can Employers Take to Fight FMLA Abuse? Employers can quickly put in place some measures that will reduce FMLA abuse and, in turn, potentially save you significant costs:

1. Require that Employees complete a written leave request form for all absences. Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system.

2. Prepare a list of probative questions you ask of all employees when they call in "sick." I often hear from employers that the FMLA does not allow them to inquire about an employee's medical condition or their need for leave. (Something to do with HIPAA, they tell me.) Nonsense! Under the FMLA regulations, employers have the right to obtain information from the employee about their need for leave. In fact, we have created a model questionnaire for our clients with questions that they can (and should) ask their employees when they call in an absence:

What is the reason for the absence?
What essential functions of the job can they not perform?
Will they see a doctor for the injury/illness?
Have they previously taken leave for this condition? If so, when?
When did they first learn he/she would need to be absent?
When do they expect to return to work?

3. Enforce usual and customary call-in procedures. Also under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer's call-in procedures. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.

4. Check in on the Employee. A practice in which the employers calls the employee during the absence (or where the employer's policy requires the employee to periodically call in) can go a long way to curbing FMLA abuse. When the lines of communication open, and the employer maintains contact with the employee, employers are often amazed at the positive results.

5. Certify ... and Recertify! Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, all too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave. Keep your employees honest -- require them to certify their absence and seek recertification at the earliest opportunity.

6. Surveillance. Where FMLA abuse is particularly rampant, courts have increasingly been supportive of the use of surveillance to ensure employees are being honest. Before doing so, however, make sure it is consistent with your personnel policies and any applicable collective bargaining agreements.

7. Conduct a comprehensive audit of your FMLA policy, procedures and use of leave. Work with your employment counsel to ensure that your FMLA policy is up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

Making important (and perhaps even significant) changes now will save you money fairly quickly, and much more money in the long run. More importantly, it may save your business.

Link Now Available: Webinar on Identifying, Managing and Preventing FMLA Abuse

Jeff Nowak — Wed, 27 Oct 2010 08:02:42 -0600

Several weeks ago, I conducted a Webinar on "Identifying, Managing and Preventing FMLA Abuse." Thanks to those of you who attended -- over 600 people from 44 states registered for the event. We had a great discussion about common FMLA issues that continue to plague employers as they administer FMLA leave. The Webinar centered around real-life scenarios in which we addressed issues such as intermittent FMLA leave, chronic serious health conditions, effective use of medical certification, and identifying fraudulent leave situations.

The 90-minute Webinar and presentation materials (both of which are complimentary) can be accessed at: http://www.franczek.com/fmlawebinar. Please also pass this link along to anyone you think who might benefit from it. Feel free to contact me with any questions you have at jsn@franczek.com.

Where, and Where Not To Get FMLA Information

Bill Pokorny — Thu, 30 Sep 2010 07:00:00 -0600

Occasionally I spot a piece of FMLA "advice" on the Internet that just makes me chuckle - and that makes me confident that the FMLA will remain a terrific source of business for employment lawyers for a long time to come. Much of it isn't outright wrong, but ends up being so superficial that it completely misses the mark. Take a recent post on ehow.com for example.

]]>Titled "How to prevent FMLA leave abuse," the brief post outlines five steps for addressing the perennial FMLA problem.

In step one, the author suggests: "Ask for re-certification of the FMLA leave."

OK, so far so good - recertification is certainly a useful tool for employers. But the author continues: "This can be done every thirty days for changes in "serious" medical conditions and every six months for chronic conditions."

Well, not quite. Recertification can be requested no more often than every 30 days - unless the original certification specifies a longer minimum duration for the condition, in which case the employer must wait until the specified minimum duration expires. However, an employer can always request recertification once every six months - regardless of whether the condition is "chronic" as defined under the rules. An employer can also recertification if there are significant changes in circumstances such as the duration or frequency of the absences, the nature and severity of the illness, complications, etc. Further, recertification is permitted if the employer receives information that casts doubt on the employee's stated reason fr the absence or the continuing validity of the certification. Finally, a medical certification is good for the duration of the applicable 12-month leave year. Once the year expires, an employer is entitled to ask for a new certification.

If you have been following this blog and our podcast then hopefully you can spot the other issues with this particular "how to" post for yourself. The lesson here is, when it comes to legal information on the Internet, buyer beware. Know where your information is coming from, check it against reliable sources, and understand that even good sources only provide general guidance and summaries. If you need legal advice about a specific situation, talk to a lawyer.

With that advice, here are a few of our favorite free FMLA resources on the Internet:

The FMLA Blog

Fox & Rothschild FMLA Blog

U.S. Department of Labor - Wage & Hour Division FMLA page

If you have other favorites, please share in the comments.

Complimentary Webinar: Identifying, Managing and Preventing FMLA Abuse

Jeff Nowak — Thu, 23 Sep 2010 10:00:00 -0600

Join over 500 people who already have signed up for our complimentary FMLA Webinar, which will take place next Wednesday, September 29 from 12:00 to 1:15 p.m. CDT. The Webinar will address a common issue that has plagued too many HR professionals -- employee abuse of FMLA leave. We will identify the most common forms of FMLA abuse, learn how to document and communicate effectively to fight FMLA abuse, highlight new regulations to use in fighting FMLA abuse and tackle the most common form of FMLA abuse -- intermittent leave.

Throughout our session, we will address hypothetical and real-life situations in an interactive format, and we'll save plenty of time for your questions.

Our Favorite FMLA Tweets (and What To Do About Them)

Bill Pokorny — Thu, 23 Sep 2010 07:00:00 -0600

Have you ever searched Twitter for the term "FMLA"? I have. Some of what you find is insightful and informative information for employers, but you will also run across some interesting commentary from employees. Here are a few of my favorite employee FMLA tweets from the past few months:

]]>

FMLA has been approved yessssssss<<< yessssssss we can leave early friday lmao!!

FMLA has been approved yessssssss_ lucky ass! I'm trynna get it!

I should not be allowed to drink and tweet! But fmla is anew version to fml- the a is for alot!

hey hey hey! All I'm saying is......I may have to "manage my time" with a lil fmla today

@PopeyesChicken is going bankrupt! I will take FMLA at work for that!

I have PTSD, so under FMLA I can call in/go home when I need to. I can say sex calms me, and I'm going home to have sex.

So what should you do if you learn of a Tweet (or Facebook update or blog post, etc.) like the ones above - and realize it was posted by one of your employees, who happens to be out on FMLA leave?

When an employee is taking FMLA leave for a serious health condition (their own or a family member's), the FMLA allows an employer to require a recertification when it "receives information that casts doubt upon th employee's stated reason for the absence or the continuing validity of the certification." On recertification, an employer "may provide the health care provider with a record of the employee's absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern." Such information may be helpful if it appears that an employee is, say, regularly playing hookie on Fridays to catch a ballgame or go fishing.

Before asking for a recertification, keep in mind that it's not hard for a dishonest employee to find a doctor who will sign off on a certification without asking many questions. In many cases, the better course may be to talk to the employee first, show them the incriminating post, and give them a chance to come clean. At times, more drastic investigative measures such as surveillance might be warranted, but employers should talk to their attorneys and carefully weigh the risks and benefits before going down that road.

Whatever approach they take, employers should not jump to conclusions or take hasty, ill-considered actions based upon what they read online. People post all kids of things - not all of it serious. An employee who comments about taking FMLA leave to go shopping may be joking, and may in fact have a legitimate need for FMLA leave. Find out what is really going on before taking action against an employee, and remember that you may have to explain your actions to a jury made up of people just like your employee.

Finally, while you're on Twitter, be sure to follow us - our blog posts are @FMLAInsights, and you can follow me @WilliamRPokorny.

Identifying, Managing & Preventing FMLA Abuse

Jeff Nowak — Thu, 19 Aug 2010 13:49:32 -0600

http://www.franczek.com/news-events-140.html

He Shoots . . . and Misses! Does the World Cup Invite FMLA Abuse?

Jeff Nowak — Sat, 26 Jun 2010 00:21:36 -0600

A couple weeks ago, as I was preparing a witness for his deposition (in a Title VII and FMLA case), it dawned on both of us that his deposition would take place mere hours after the deciding Game 6 of the Stanley Cup Playoffs. Upon this realization, his face grew a bit pale, and he began wondering out loud whether he would be in the best shape for a deposition the day after a Chicago Blackhawks victory. [Insert here: visions of a late night at the local pub.]

No worries -- both my client and the Blackhawks came out on top. However, the more I considered the above exchange, the more I wondered whether this scenario raises a common issue for employers as they administer FMLA leave -- Do major sporting events, such as the Stanley Cup and ongoing World Cup, invite widespread abuse of FMLA leave?

]]>As an initial matter, Daniel Schwartz of the Connecticut Employment Law Blog provides some excellent practical advice to employers to help them maximize their employees' performance as they become engrossed in the daily distractions of the World Cup. It highights a number of measures employers can put in place to help employees enjoy the World Cup while maintaining an efficient workplace.

Yet, the question still remains: Might employees become so engrossed in the World Cup that they use FMLA as an excuse to don their country's colors and catch a match that occurs once every four years? Especially when the game takes place in the middle of the workday?

How Can Employers Curb FMLA Abuse During Major Sporting Events, such as the World Cup? To avoid falling prey to FMLA abuse during sporting events like the Stanley Cup and World Cup, employers should ensure they have the following measures in place:

2. Prepare a list of probative questions you ask of all employees when they call in "sick." Time and again, employers tell me that they believe they have no right to ask employees any questions about the reasons for their absence. Wrong! Under the new FMLA regulations, employers arguably have the right to obtain information from the employee about their need for leave. No longer must an employer accept the simplistic "I'm sick" routine. For instance, employers can (and should) ask:

What is the reason for the absence?
Will they see a doctor for the injury/illness?
Have they previously taken leave for this condition? If so, when?
When did they first learn he/she would need to be absent?
When do they expect to return to work?

3. Enforce usual and customary call-in procedures. Under the new FMLA regulations, absent an unusual circumstance, employers now may deny FMLA leave if the employee fails to follow the employer's call-in procedures. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.

4. Certify ... and Recertify! Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, all too many employers fail to obtain from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave. Keep your employees honest -- require them to certify their absence and seek recertification at the earliest opportunity.

Although the U.S. is no longer part of the World Cup, let the employer beware...