"Eating Turkey Made Me Fall Asleep And I Missed My Shift": How Employers Can Deal With The Most Outrageous Excuses For FMLA Leave

by Franczek Radelet P.C.
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Fake illness.jpgAccording to a recent CareerBuilder survey, nearly one-third (32 percent) of your employees have called in sick when they're not actually sick.  Perhaps just as notable, 30 percent of your employees admit that they have reported to work despite actually being sick. The reason? So they can save their sick days for when they’re feeling well. 

Instead of telling their supervisors they were feeling under the weather and can't make into work, employees across America offered the most colorful excuses in 2013.  Here are some of my favorites from the CareerBuilder list:

  • Someone glued my doors and windows shut so I couldn’t leave the house to come to work.
  • A swarm of bees surrounded my vehicle and I couldn’t make it in.
  • The chemical in turkey made me fall asleep and I missed my shift.
  • I received a threatening phone call from the electric company and needed to report it to the FBI.
  • My fake eye was falling out of its socket.
  • I got lost and ended up in another state.
  • [And my personal favorite]: My false teeth flew out the window while driving down the highway.

Interestingly, the survey also highlighted employers' attempts to combat leave abuse.  About 30 percent of employers have checked in on employees who have called in sick to make sure the excuse was legitimate. Of those employers who actually verified employees’ excuses over the past year:

  • 64 percent required a doctor’s note
  • 48 percent called the employee 
  • 19 percent checked the employee’s social media posts 
  • 17 percent had another employee call the sick employee, and 
  • 15 percent drove past the employee’s house.

Insights for Employers

CareerBuilder forecasts that employees will call in sick far more often from December through February each year.  Many legitimately will be sick.  Others won't.  So, as we approach the holidays and winter months, keep in mind my 'ol tried and true tricks for warding off employee FMLA leave 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: Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system. And it tends to help your administration of employee 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: We are going to discuss this in detail at our upcoming December 5 webinar, so be sure to register here!  Medical certification is one of the best tools to combat FMLA abuse. So, use it! Moreover, if this is a medical condition for which they have 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.
  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.

In the meantime, my very best wishes for a Happy Thanksgiving!  Gobble, gobble!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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