Don’t you hate it when someone glues your windows and doors shut so you cannot make it to work? Hasn’t happened to you? According to a recent CareerBuilder survey, this may very well have happened to one of your co-workers the last time he was absent from work.

Last month, CareerBuilder published the 2014 edition of its annual survey highlighting the most outrageous excuses employees have given when calling in sick. Consider some of these highlights:

• Over the past year, 28% of employees have called in to work sick when they were feeling well, which was down from 32% last year. When asked for a reason, 30% said they simply didn’t feel like reporting to work and 29% responded that they wanted the day to kick back and relax.
• Another 21% took the day off to attend a doctor’s appointment and 19% wanted to catch up on sleep. Meanwhile, bad weather was enough for 11% of employees to take the day off.

Instead of reporting to their supervisors that they were under the weather and couldn’t make to work, employees across the country provided the most colorful excuses in 2014. Here are some of my favorites from CareerBuilder’s list:

• My plastic surgery needed some “tweaking” to get it just right.
• I was sitting in the bathroom and my feet and legs fell asleep. When I stood up, I fell and broke my ankle.
• I woke up in a good mood and didn’t want to ruin it.
• I got stuck in the blood pressure machine at the grocery store and couldn’t get out.
• I accidentally got on a plane. [Huh?]

Social Media Empowers Employers

Next time you want to play hooky at the beach, you may not want to post on Facebook photos and snippets of your day. Interestingly, CareerBuilder noted that one in four employers (24%) has caught an employee lying about being sick by checking social media.

This stat isn’t necessarily surprising, as we have witnessed a groundswell of litigation involving employees who are terminated because their FMLA abuse was broadcast for all to see on social media. This new frontier of FMLA litigation reminds employers that they must act carefully when investigating suspected FMLA abuse.

If you attend my *free* FMLA webinar on November 13 (register here), I will give you the recipe for lawfully conducting an investigation involving suspected FMLA abuse after it is broadcasted on social media.  Don’t miss out!

Insights for Employers

Despite our best efforts, these outrageous sick leave excuses are a mere phone call away, and CareerBuilder tells us that the holidays are the worst part of the year for fabricated stories about the need for leave.  So, in addition to attending my webinar next week, keep these suggestions in mind to ward off employee FMLA abuse:

1. Is the Employee Requesting Leave That May Be Covered by FMLA?: First, you must determine whether the employee has even notified you of the 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. Of course, it’s never that easy. Employees 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 pops up intermittently throughout the year; c) is seeking treatment for what appears to be a serious medical condition; d) is caring for a family member with a possible serious health condition; or 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. Require that Employees complete a written leave request form for all absences: Require the employee to write out his/her request, or fill out a leave request form, which tends to deter them from gaming the system. And it helps you better administer leave.
3. Enforce usual and customary call-in procedures: Not nearly enough employers utilize this tool, even though they should! 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. Prepare a list of probative questions you ask of all employees when they call in to report an absence: As the employer, you have the right to know why your employee cannot report to work. So if you have concerns about their leave request, don’t hesitate to ask more probing questions about why they need leave! 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 [Is it just the sniffles, or is it something more?]
   – 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 and when?
   – When they first learned they would need to be absent
   – The expected return date (or time, if less than a day)
5. Use medical certification and recertification to your advantage: Medical certification is one of the best tools to combat FMLA abuse. So, use it! Moreover, if this is a medical condition for which an employee has 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. If you are concerned about a Monday/Friday pattern of 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.  Work with your attorney to craft this correspondence so you can effectively combat leave abuse.
6. Conduct a comprehensive audit of your FMLA policy, procedures and use of leave: As we approach a new year, it is the perfect time to work with your favorite employment counsel [cheap, shameless plug!] to ensure that your FMLA policy and procedures are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

See you on November 13 — have I told you I am hosting an FMLA webinar that day?