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:
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 for leave just might make them think twice before yearning for Pele.
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…