This scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve. Due to seniority or the employee's last minute request for time off, her leave request is denied. However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can't work due to a flare up of her chronic bad back.
Plenty of employers just mark these days off as FMLA leave. But they often do so with a whole lot of regret and with a wish they could do something more to push back on what they believe is a suspicious leave request.
But employers can push back, and here's how...
Unfortunately, the FMLA regulations give employers little guidance when dealing with a leave request like the kind above. However, the regulations relative silence on this issue opens the door to lawful maneuvers by employers to get to the truth. Let me explain the ways:
1. Enforce your rights at the medical certification stage. If this is an initial medical certification of a serious health condition, I would consider including a cover letter addressed to the employee (to be shown, in turn, to the health care provider) noting that the employee's request for FMLA leave covers precisely the same days for which the employee just recently sought vacation leave. As a result, you explain to the employee that you are (rightfully) concerned whether leave on these particular days actually are consistent with the employee's alleged serious health condition and the pattern of absences. In your letter, you ask that the health care provider specifically confirm this in the certification.
A risky move? It's not a conservative move, I admit, since this approach is not specifically sanctioned in the regulations (at least for an initial certification). However, I also would be perfectly comfortable arguing to the DOL that that this approach does not remotely interfere with the employee's substantive FMLA rights. In taking this approach, you are making no determination as to the merit of the leave request just yet. You simply are enquiring further since it's necessary to obtain more information to ensure FMLA leave actually is being sought. This kind of inquiry arguably is allowed under the regulations at 29 CFR 825.302(c).
The practical impact of this move: Even though the health care provider likely will confirm that your employee was incapable of working on Christmas Eve and NYE [author's note: what a coincidence!], it sends a message to your employee that you take your own FMLA rights as the employer seriously and will vigorously enforce them to ferret out possible FMLA abuse. The true impact of this move will be felt the next go around when the employee thinks twice about abusing leave time.
2. Enforce your rights by seeking clarification and/or a second opinion. This situation is fishy enough that it creates reason to doubt the validity of a certification that supports the absence. Before moving toward a second opinion, however, employers should work with the employee to cure the certification and seek to clarify it with the health care provider. During this process, you may learn information that either supports the merits of the employee's leave request or, conversely, casts further doubt on the validity of the certification.
3. Enforce your rights at the recertification stage. If you already have medical certification on file, the timing of the FMLA absences on the same days that were requested and denied earlier as vacation arguably constitutes "a significant change in circumstances" from the previous certification which, in turn, allows the employer to request recertification. Similar to point No. 1 above, I would recommend including (directly to the health care provider) the pattern of the suspicious leave requests and requesting that the doctor confirm whether the need for leave on these precise days is consistent with such a pattern.
4. Consider implementing a personal certification procedure. Some employers require as part of their usual and customary practice that an employee sign a "person certification" acknowledging that he/she took time off for FMLA or another medical reason. If the employee fails to provide one, or takes leave inconsistent with the stated reason on the personal certification, it can be grounds for discipline. Keep in mind, though, that this practice should be usual and customary; otherwise, employers fall prey to claims of discrimination (i.e., requiring one employee but not another to complete the personal certification).
5. If the abuse is particularly bad, termination may be appropriate (in extreme cases). In an earlier blog post, I highlighted Rydalch v. Southwest Airlines (pdf), which is a fabulous case for employers. Here, Southwest found that the plaintiff was abusing FMLA leave by taking leave in conjunction with other vacation days he requested off. Southwest relied on its honest belief that the plaintiff was abusing leave, and the court agreed. As a result, the court dismissed the plaintiff's FMLA claims in their entirety.
A similar case is Crouch v. Whirlpool Corporation, in which the employer had an honest belief that its employee was using FMLA leave for vacation purposes instead of recovering from an injured knee.
Employers, all hope is not lost. Use the tools above to probe further on leave requests, particularly when they are part of a suspicious leave request or an unusual pattern of absences. In doing so, you properly assert your FMLA rights and serve warning to your employees that FMLA abuse will not be tolerated.