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The 12 Days of Medical Leave: Dealing with FMLA Abuse Around the Holidays

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The 12 Days of Medical Leave: Dealing with FMLA Abuse Around the Holidays

An employee asks to use vacation days near the holidays, but the request is denied due to the employee’s seniority level and the number of other employees who have already requested vacation time for the same dates.  Later, the employee requests FMLA leave to cover the same dates.  As another holiday season comes to a close, these facts may sound all too familiar to employers. 

Are the employers’ hands tied simply because the employee uses the magic word “FMLA,” or because she has submitted a doctor’s certification supporting her entitlement to leave?  No, employers can, and should, take several different actions to help minimize FMLA abuse. 

  • Require a Medical Certification.  Employers do not have to take an employee’s word for it; under the FMLA, employers have the right to require employees to submit a medical certification of a health care professional that confirms the employee’s need for leave.
  • Request a Second Opinion.  Employers have the right to seek clarification of an incomplete certification or to request a second opinion when there is reason to doubt the validity of a medical certification.  In most circumstances, the employee’s request for leave for the same dates as the denied vacation request should be sufficiently suspicious to support an employer’s request for a second opinion.  Note that a second opinion is on the employer’s dime, however.
  • Request Recertification.  If the employee already has a medical certification on file, the employer may request recertification pursuant to 29 CFR 825.308(a).
  • Document, Document, Document.  A good personnel file can help build an employer’s case.  By including vacation and FMLA requests in the file, an employer may notice a suspicious request that might otherwise go unnoticed.  By keeping record of an employee’s FMLA leave, an employer may notice other suspicious patterns, like frequent absences on Mondays and Fridays.  In the unfortunate case of future legal action, such documentation can be invaluable in supporting an employer’s actions.
  • Sit Down with the Employee and Discuss the Consequences of FMLA Abuse.  Confront the employee: explain why you are concerned and provide any facts that show a suspicious pattern of FMLA leave requests.  Give the employee a chance to explain.  Even if the employee maintains that his request is legitimate, this conversation will make him aware that his actions are not going unnoticed and hopefully make him think twice before pulling a similar stunt again.  And, of course, document this conversation.
  • Use surveillance.  Some employers have chosen to hire a surveillance service to observe whether an employee’s behavior is consistent with his or her stated reason for leave.  Video tapes and photographs taken by an investigator can be particularly compelling evidence to support an employers’ decision to discipline or terminate an employee for abusing FMLA leave.
  • Consider Revising Your Leave Time Policy.  Employers can institute specific policies that help curb FMLA abuse.  For example, employers may require specific call-in procedures, and can use employee handbooks to reinforce the FMLA’s notice requirements when the need for leave is foreseeable.  Although a bit riskier, a federal appeals court even upheld an employer’s travel restrictions on employees who are out on paid leave when the employer terminated an employee who took a vacation to Cancun while she was on leave.  Pellegrino v. Communications Workers of America, AFL-CIO, CLC, 478 Fed. Appx. 742 (3d Cir. 2012).