Is Your Employee Abusing Her FMLA Leave?

We are once again back with Splendiferous Supermarket and Betty the Boss. Splendiferous is really having some FMLA challenges.(Click here and here for review.) Three months ago, Crafty Caroline, (“Caroline”) a full-time stock clerk, presented her immediate supervisor, Martha Manager, with a doctor’s note indicating that she suffers from migraines and that she will need time off to recuperate during and after a flare-up. Caroline has since had five absences of at least two days each. Martha tells Betty she is convinced Caroline is “faking it”. What happens next? Find out after the jump…

Before we go further, you will be happy to know that Splendiferous learned its lesson from Diligent Dan regarding certifications (Click here if you missed that post). Caroline’s leave was properly designated as FMLA leave; Splendiferous timely and appropriately requested certification.

Caroline’s leave is what we call intermittent FMLA (which itself may be the subject of an upcoming post).  Let’s get back to the situation at hand. Martha is a very no-nonsense manager and she wants to fire Caroline. If Martha does that now, Splendiferous could be liable for FMLA interference and/or retaliation. . Allow me to introduce you the “honest belief” defense. An employer who has an “honest belief” that an employee is or was abusing his/her FMLA leave and acts on it may escape FMLA interference/retaliation liability. This can be a very powerful defense. Employers need not ultimately be correct in their suspicions. Now, does that mean that you can simply fire any employee who takes FMLA leave and claim you “honestly believed” s/he was “faking it”?  You don’t really need me to tell you “No”, do you? Remember that surrounding facts will often tend to prove or disprove whether the employer had an “honest belief”. But Martha’s belief, based only on the 5 absences of at least two days each, is a bit “iffy”.

After Diligent Dan’s lawsuit, Betty doesn’t want to take any chances. She tells Martha that she will have HR investigate. What are some questions Splendiferous’ HR Department should ask and what steps should it consider taking in conducting its investigation? Here are some:

1. What did Caroline’s attendance look like prior to her intermittent FMLA request, and how did Caroline appear to be functioning at work prior to the request? Did Caroline ever mention migraines before? Had she ever needed to leave work early or arrive late due to migraines? Did her condition appear to get progressively worse?
2. Look at Caroline’s paid time off. Does she have any accrued, unused time left? In the last several months did she request vacation time? If so, did Splendiferous approve or deny the request? If she did/does have unused vacation time, did any of the FMLA absences take place on days immediately before or after the vacation days (or holidays or weekends)? In other words,  could she effectively have been using FMLA instead of or to extend vacation time?
3. Re-examine Caroline’s certification. You might be able to get clarification from the doctor or even request re-certification (which you can often do every 30 days for intermittent FMLA). Was there any part of the certification that may have been vague?  If Caroline’s absences are getting longer you can describe the situation to the doctor and ask if her condition appears consistent with the need for longer absences. You can also ask if Caroline’s condition is consistent with the need for leave the day(s) before or after scheduled vacation, holidays, etc. If the doctor has indicates that s/he hasn’t seen Caroline in some time, that might give you further indication that something is amiss.
4. Some companies hire a private investigator. A private investigator can follow the employee and conduct video surveillance. Yes, this is more costly, but it is often a very effective method of ascertaining whether or not the employee’s claim that s/he really is sick and is on needed FMLA time is legitimate. If Caroline tells Martha that she is having a migraine and is in bed for three days, and Splendiferous have video surveillance showing that she was at Six Flags or skiing in Aspen, (See, for example Lineberry v. Richards  E.D. Michigan, No. 2:11 13752, Feb. 5, 2013). Martha has ample grounds to terminate Caroline’s employment.
5. Check out the world-wide web: Does Caroline have a Facebook or Twitter page? Has there been any activity on the days she was out? If Caroline posts pictures of herself on Facebook partying at some ethnic festival on those days, for example (See Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697, 2012 WL 5416616 (6th Cir. Nov. 7, 2012) or tweets about it, Martha again has ample grounds to fire Caroline.
6. Listen to her co-workers.  Employees who abuse FMLA approvals often earn the resentment of their co-workers who end up picking up the slack–especially if Caroline brags about what she does on her days off or she behaves in other ways that clearly indicate to co-workers that she isn’t/wasn’t sick.

OK, let’s suppose that Martha has video surveillance of Caroline playing football on her front lawn with her sons during her last absence. Should she go ahead and fire Caroline? Not before bringing Caroline in to the HR Manager, with a witness present, asking her some questions about the days she was out, the limitations that her migraines impose, and having her acknowledge Splendiferous’ FMLA policies and procedures.  Martha can then confront Caroline with the video surveillance. If Caroline does not have an adequate explanation (and under these circumstances it is unlikely that she would) Splendiferous can terminate her. Splendiferous, should also, of course, document everything that happened in that meeting. There are other steps Splendiferous can take to minimize the risk of FMLA abuse –but this post is getting kind of long. Sorry! That is what in-house and/or competent outside employment counsel is for, though.

This time next week on The EmpLAWyerologist: FMLA and temporary employees. Don’t miss it!

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.

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