It’s a Friday in the middle of summer. So, approximately half of your workforce called off today due to an FMLA-related absence. [Well, not really, but I’m not that far off, amirite?]
Take heart. At least you’re not the City of Chicago.
As reported this week by the City’s Inspector General, three employees in the City’s Office of Emergency Management and Communications all took FMLA leave at the same time for various so-called ailments. Instead of laying up on the couch and recuperating, however, the employees took the first plane they could out of Chicago and headed down to the Caribbean for a “booze” cruise and other similar activities, according to the Inspector General’s report, which highlighted their fun in the sun:
The [employees] consumed alcohol, went to numerous restaurants, attended night clubs, toured Caribbean islands, went horseback riding, rode jet skis, and even went on a ‘booze cruise.’
In a move that would make even the most egregious FMLA abuser blush, two of the employees took a combined 10 cruises over a seven year period, using FMLA leave on these occasions to avoid work.
That’s not all.
A fourth employee used 19 days of FMLA leave to take two Caribbean cruises in 2014 and 2017. During these cruises, he consumed alcohol, toured the islands, shopped and went clubbing at night. When questioned about his boondoggle, the employee stated simply that he took FMLA leave “just to get away.”
Many of these FMLA days were paid by the City, all on the taxpayer’s dime. However, the employees apparently did not schedule their paid time off in advance, so that they could more easily slip away unnoticed.
When the pattern of their activities was snuffed out, they were terminated for their outrageous FMLA abuse. But not until the damage had already been done.
Insights for Employers
Stay vigilant, my friends. How can employers minimize the chances of getting stung by this same tactic? I’ve shared some of these ideas before, but here are a number of tools that have worked for my clients as they have fought FMLA leave abuse, especially in the dead of summer:
- Prepare a list of probative questions you ask all employees when they request time off. Employers, you have the right to know why your employee can’t come to work! So, prepare a list of questions that you ask your employees when they call in an absence. These will help you better determine whether FMLA is in play and if the request might be fraudulent:
– What is the reason for the absence?
– What essential functions of the job can they not perform?
– Will the employee see a health care provider for the injury/illness?
– Have they previously taken leave for this condition? If so, when?
– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?
– When do they expect to return to work?
2. Enforce call-in procedures. Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be. 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.
As I referenced in a recent blog post, you should consider aligning your FMLA call-in policies with your regular PTO policies.
3. 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 (or fail to do so in a timely manner) 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. Require medical certification to initially verify the serious health condition, upon the first absence in a new FMLA year, and when the reason for leave changes.
4. Use the “Cure” Process to your Advantage When Following Up on Certification. Where the medical certification form does not sufficiently answer the questions posed on the form or the health care provider’s responses tend to raise doubts, employers should immediately communicate with the employee to cure the deficiencies and/or shed light on any suspect information provided in the form. In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies. Here, you might consider asking questions that probe further into the information you find particularly suspect. Also, seek clarification whenever the employee has failed to cure and the certification remains incomplete or insufficient. Additionally, consider using a physician or a nurse to contact the employee’s health care provider on the employer’s behalf (but remember: you must have the employee’s permission to contact the employee’s health care provider).
5. Discuss with the Employee Your Expectations During Leave. When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave. Ensure that your employee understands the call-in requirements (i.e., where to call into and what basic information you expect that the employee will provide about their need for leave), certification obligations, any check-in obligations, and your expectations for proper use of FMLA leave. These expectations should be summarized in a document that you provide your employee, who should sign off on it. This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave.
6. Have Employee Complete a Personal Certification. This could have come in handy for the City of Chicago. Upon return from any leave of absence (FMLA or otherwise), ask the employee to complete a personal certification asking them to confirm that they actually took leave for the reason provided. The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document. My recommended form looks like this: 
7. Check in on your Employee and/or Make Them Stay Put. Want to be really aggressive but operate within the law? I have a handful of clients who explicitly tell employees that it is their policy to check in on the employee if they are using paid sick leave, and then they actually check in on them. Taking this one step further, some clients require their employees to remain in the immediate vicinity of their home while they are recuperating. If they don’t follow this policy, they face discipline. Think this tactic is illegal? Think again. One court already upheld this very approach!
8. Follow up on Patterns of Absences. Monday/Friday absences. Taking days off around a holiday to extend time off. These situations smack of FMLA abuse. If you witness a pattern of absences over even a modest period of time (e.g., over a series of weeks or in back-to-back months), we arguably have the right to reach out the employee’s physician. Here, we follow the FMLA regulations (29 CFR 825.308) and ask the employee’s physician to confirm for us whether the pattern you’re witnessing is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can obtain your own sample letters for these situations.)
9. Scheduling Medical treatment Around Your Operations. Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.
10. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy and forms 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.
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
