FMLA Insights - Guidance & Solutions for Employers

This scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve.  Due to seniority or the employee's last minute request for time off, her leave request is denied.  However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can't work due to a flare up of her chronic bad back.

Plenty of employers just mark these days off as FMLA leave.  But they often do so with a whole lot of regret and with a wish they could do something more to push back on what they believe is a suspicious leave request.

But employers can push back, and here's how...

Unfortunately, the FMLA regulations give employers little guidance when dealing with a leave request like the kind above.  However, the regulations relative silence on this issue opens the door to lawful maneuvers by employers to get to the truth.  Let me explain the ways:

1.  Enforce your rights at the medical certification stage.  If this is an initial medical certification of a serious health condition, I would consider including a cover letter addressed to the employee (to be shown, in turn, to the health care provider) noting that the employee's request for FMLA leave covers precisely the same days for which the employee just recently sought vacation leave.  As a result, you explain to the employee that you are (rightfully) concerned whether leave on these particular days actually are consistent with the employee's alleged serious health condition and the pattern of absences.  In your letter, you ask that the health care provider specifically confirm this in the certification.

A risky move?  It's not a conservative move, I admit, since this approach is not specifically sanctioned in the regulations (at least for an initial certification).  However, I also would be perfectly comfortable arguing to the DOL that that this approach does not remotely interfere with the employee's substantive FMLA rights.  In taking this approach, you are making no determination as to the merit of the leave request just yet.  You simply are enquiring further since it's necessary to obtain more information to ensure FMLA leave actually is being sought.  This kind of inquiry arguably is allowed under the regulations at 29 CFR 825.302(c).

The practical impact of this move: Even though the health care provider likely will confirm that your employee was incapable of working on Christmas Eve and NYE [author's note: what a coincidence!], it sends a message to your employee that you take your own FMLA rights as the employer seriously and will vigorously enforce them to ferret out possible FMLA abuse.  The true impact of this move will be felt the next go around when the employee thinks twice about abusing leave time.

2.  Enforce your rights by seeking clarification and/or a second opinion.  This situation is fishy enough that it creates reason to doubt the validity of a certification that supports the absence.  Before moving toward a second opinion, however, employers should work with the employee to cure the certification and seek to clarify it with the health care provider.  During this process, you may learn information that either supports the merits of the employee's leave request or, conversely, casts further doubt on the validity of the certification.

3.  Enforce your rights at the recertification stage.  If you already have medical certification on file, the timing of the FMLA absences on the same days that were requested and denied earlier as vacation arguably constitutes "a significant change in circumstances" from the previous certification which, in turn, allows the employer to request recertification.  Similar to point No. 1 above, I would recommend including (directly to the health care provider) the pattern of the suspicious leave requests and requesting that the doctor confirm whether the need for leave on these precise days is consistent with such a pattern.

4.  Consider implementing a personal certification procedure.   Some employers require 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 in mind, though, that this practice should be usual and customary; otherwise, employers fall prey to claims of discrimination (i.e., requiring one employee but not another to complete the personal certification).

5.  If the abuse is particularly bad, termination may be appropriate (in extreme cases).  In an earlier blog post, I highlighted Rydalch v. Southwest Airlines (pdf), which is a fabulous case for employers.  Here, Southwest found that the plaintiff was abusing FMLA leave by taking leave in conjunction with other vacation days he requested off.  Southwest relied on its honest belief that the plaintiff was abusing leave, and the court agreed.  As a result, the court dismissed the plaintiff's FMLA claims in their entirety.

A similar case is Crouch v. Whirlpool Corporation, in which the employer had an honest belief that its employee was using FMLA leave for vacation purposes instead of recovering from an injured knee. 

Employers, all hope is not lost.  Use the tools above to probe further on leave requests, particularly when they are part of a suspicious leave request or an unusual pattern of absences.  In doing so, you properly assert your FMLA rights and serve warning to your employees that FMLA abuse will not be tolerated.

Thanks to those who attended my webinar last week with Matt Morris and Tamika Lynch on "FMLA Made Easy: Effectively Managing Difficult FMLA Issues."  If you missed the program, you can access the webinar and materials here.  As the survey feedback indicated, this webinar was a great opportunity to discuss common issues that arise in the administration of FMLA leave and how employers can best address them.

From an employer perspective, there are several key takeaways from the webinar that will help employers legally administer FMLA leave and prevent FMLA leave abuse (ignoring, of course, the part where I sang to you during the webinar):

1. Medical certification, recertification and second/third opinions continue to be among the best tools to combat FMLA abuse. We spent a good amount of time during the webinar working through what an employer should do when it receives incomplete, inadequate or suspect medical certification. The message is clear -- employers have rights when it comes to the medical certification process, and they should utilize them to combat FMLA abuse.  A prior blog post here and our podcast here also help guide you through best practices in the certification process. 
2. A honest belief that an employee is abusing FMLA leave -- in most cases and states (except California!) -- is a strong defense to an FMLA claim, so long as the employer conducts a complete and exhaustive investigation of the facts involved.  Clearly, more employers should be mindful of this defense, since courts are increasingly turning to it when analyzing FMLA claims.  
3. Employers must be careful where an employee seeks leave to care for an adult child or another family member.  For best practices in dealing with these issues, access the webinar!
4. Where FMLA ends and ADA begins, it is critical that employers engage the employee in the ADA's interactive process.  Communicate during FMLA leave...after FMLA leave ends...and at all times before and in between!  Where an employee has requested additional leave after FMLA leave expires, we want to know what they can and cannot do, whether reasonable accommodations are available to help them perform their essential job functions, and whether additional leave will help them perform these essential duties. As I also pointed out during the webinar, it is important for employers also to document how the requested leave of absence poses an undue hardship to their business. Specifically, they should document the following:     
   • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
   • Lower quality and less accountability for quality
   • Lost sales
   • Less responsive customer service and increased customer dissatisfaction
   • Deferred projects
   • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
   • Increased stress on overburdened co-workers
   • Lower morale

Finally, as you may recall during the webinar, I made reference to an FMLA guide recently published by the U.S. Department of Labor that I believe is of value to employers when discussing with an employee their obligations under the FMLA.  You can access the Guide here (pdf).  What I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process.  HR professionals and attorneys have mentioned to me that they have found the Guide useful in their discussions with employees largely for this reason.

Thanks again to those who attended the webinar.  I look forward to your continued feedback on the issues we discussed.  Feel free to post a comment here or email me at jsn@franczek.com. 

Later this week, I am conducting FMLA training for management employees at one of our clients.  The training will focus on how the employer can utilize its own current personnel policies to properly administer FMLA leave and combat FMLA abuse.  During this training, I am going to tell them about Ritenour v. State of Tennessee.  Why?  Because it's a great example of how an employer properly applied its call-in policy to discipline and ultimately terminate an employee who chose to ignore her obligation to timely report her absences.

Going into extensive factual detail about the case isn't terribly necessary.  In any event, Jon Hyman does a great job of summarizing the case at his employment blog.  Although the fact pattern is a bit detailed, it boils down to this:  the plaintiff, Amy Ritenour, required time off to care for her child.  In the midst of taking several days off to attend to her son, she was absent for four straight workdays without calling in to report her absence.  Really -- no one heard from her and she had no excuse for failing to call in her absences. 

Under her employer's call-in policy, her failure to call in her absences was a problem, as it should be.  As Mr. Hyman appropriately points out in his blog post, the FMLA regulations are quite clear as to an employee's obligations to call in an absence:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.  For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. . . .

Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.  29 C.F.R. 302(d)

So, what did the employer's call-in policy state here?  It clearly stated the following:

If you must be late for work or absent because of illness or for an unforeseen circumstance, personally notify your appropriate manager or immediate supervisor as soon as possible by telephone. . . .

If you are not at work during your regular hours, you must be on authorized leave. This means that your supervisor knows of and has approved your absence.  In accordance with the law and rules, job abandonment occurs when an employee is absent from work without approval for three consecutive workdays or two consecutive workdays following the expiration of any authorized leave.

In short, Ritenour was obligated to follow her employer's policy above unless she could establish that an "unusual circumstance" prohibited her from calling in her absences.  As the court pointed out, Ritenour was well aware of the obligation to call in her absences, and when she failed to do so, she was in violation of her employer's reasonable call-in policy.  Her defense was doomed when she failed to articulate an unusual circumstance that otherwise would absolve her of following the employer's call-in policy.  This is particularly true because the employer's policy required proper notice for an absence of any kind, not just those under FMLA.  Therefore, when the employer disciplined Ritenour for violating the policy, it did not do so simply because of her rights under the Family and Medical Leave Act.  Rather, it applied its policy fairly to an employee who was absent from work, just as it would have done with another employee.

Insights for Employers

1. Employers often are reluctant to apply their call-in policy to those employees on FMLA leave.  However, as the Ritenour court points out, an employer's usual and customary call-in policies can and should be enforced, so long as they are applied consistently for all forms of absences.  Consistent application is key.  Employers should use this case as a guide when implementing reasonable call-in policies in their own workplace.
2. As the regulations specifically point out, a employer may require as part of its policies that an employee provide written notice of the need for leave, and that the employee also call in an absence to a particular person.  As I have recommended in the past, I strongly encourage the use of leave of absence forms to ensure full employee compliance and to require the employee to call into a specific person. 
3. If you don't have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place.  They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.

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:

1. 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)
2. Enforce call-in procedures.  If the employee is required by policy to call in daily or at regular intervals, enforce the policy! 
3. Apply all policies consistently with respect to employees taking FMLA and non-FMLA leaves of absence. 
4. 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.
5. 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. 

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.

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?

Continue Reading

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.

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.

Register for the Webinar by clicking here.  See our earlier post for more information about the Webinar.

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