Tag Archives: FMLA Abuse

Recent Appellate Court Decision Provides Guidance For Investigating Intermittent FMLA Abuse

Contributed by Steven Jados, December 8, 2016

Intermittent FMLA leave can be a source of frustration for employers even when it is used appropriately because it complicates staffing and planning and interrupts business operations. But when an employee’s use of intermittent leave seems just too convenient (e.g., when it is regularly used on Fridays and Mondays to make long weekends), employers naturally grow suspicious.

The recent Sharif v. United Airlines, Inc., decision from the U.S. Court of Appeals for the Fourth Circuit confirms that if an employer is able to prove intermittent FMLA abuse by conducting a prompt and thorough internal investigation, and perhaps some luck, it is justified in taking action against an FMLA abuser.

Sharif arranged his schedule so that he was required to work only one shift – March 30 — during a three-week period. Having arranged that schedule, Sharif took a vacation to South Africa.  At approximately 1 a.m. on March 30th, Sharif left a voicemail saying he needed to take intermittent FMLA leave for his shift that day.

out of office at the beachSharif’s use of intermittent FMLA leave in the midst of a lengthy vacation struck United as unusual as did the fact that Sharif’s wife (also a United employee) was taking similarly-scheduled time-off. Furthermore, Sharif had taken FMLA under similarly suspicious circumstances in 2013. United investigated Sharif’s whereabouts and learned, among other things, there were no flights from South Africa at that time would have allowed him to return to the U.S. in time for his shift. When United questioned Sharif, his story shifted multiple times suggesting he was being dishonest. Ultimately, United concluded Sharif never intended to work his March 30th shift and terminated him.

Sharif sued alleging he was terminated in retaliation for taking FMLA leave. United responded that Sharif’s use of FMLA leave on March 30th was fraudulent. United prevailed in the district court without a trial, and the appellate court upheld the judgment because United made “a reasonably informed and considered decision” before terminating Sharif.

United’s investigation uncovered facts—and an equivocating employee—that made the case for termination a much easier decision than most employers typically face. Nevertheless, employers can still learn lessons from the thoroughness of United’s investigation. When faced with suspected FMLA abuse, employers should conduct as much of the investigation as possible before interviewing the employee. When it is time to interview the employee, employers must carefully document the answers the employee provides. If the employee is a habitual FMLA abuser, careful documentation of prior explanations for FMLA use may, over time, reveal inconsistencies and untruths that are helpful in the future.

The bottom line is that FMLA abuse is usually difficult to establish. Employers should consult with experienced labor and employment counsel before, during, and after any investigation of suspected abuse to ensure that whatever decision is made is supported by strong evidence that can withstand court scrutiny.

Is Your Holiday Cheer Being Intermittently Dampened by Concerns of FMLA Abuse?

Contributed by Michael Wong

Have you noticed that an employee’s requests for leave tend to occur on a Friday or Monday?  Is an employee suddenly unable to work immediately before or after holidays? It is not unusual for employers to experience FMLA abuse, especially around the holidays. The following are a few practices that can help you combat FMLA abuse:

  1. Be Vigilant and Be Aware – Having a system that tracks when employees take FMLA leave can help you identify patterns of abuse and act quickly to investigate and address them appropriately.
  1. Control Scheduling – FMLA regulations require that absences for planned medical treatments be scheduled in a way that least disrupts employers’ operations. When dealing with an employee’s request for FMLA leave for treatment, therapy or doctor visits, you should contact the employee regarding the frequency, hours of the health care provider and ways that the schedule can be modified to decrease disruptions to your operations.
  1. Question the Employee – It is important to understand that the FMLA allows employers to require employees to keep them informed about his/her plans – which can include:
    1. Questions regarding the need for FMLA leave and anticipated On Holidayreturn date;
    2. Requiring employees to call in to verify that absences are FMLA-related;
    3. Calling an employee at home as a means of verification;
    4. Requiring written certification from employee attesting that leave is/was FMLA-related. (IMPORTANT – Employers cannot require a doctor’s note, unless it is being treated as a recertification.)
  1. Request Recertification – Employers can generally only request recertification once every 30 days. However, employers may request recertification more often if the following occurs:
    1. An extension of leave is requested by the employee;
    2. Circumstances have changed significantly since prior certification – i.e. prior certification states 1-2 days per absence and employee has taken 4 days for past two absences or a pattern of FMLA leave that coincides with holidays/days off;
    3. Employer has information that creates an honest belief that employee’s stated reason for leave is improper – i.e. employee is recovering from knee surgery, but is still playing in the company softball league.
  1. Investigate – Employers are able to monitor patterns of suspected leave misuse to ensure that an employee’s leave is legitimate, including questioning the employee, reviewing social media and even surveillance. (NOTE – Information from coworkers about an employee’s actions while on leave must be verified, to avoid allegations that the coworker was lying.)
  1. Confront the Employee – After an investigation is done, if there is evidence of FMLA abuse, confront the employee with the evidence and provide the employee an opportunity to explain what occurred. While the employee may deny the abuse, they could surprise you and admit to it.

These tips won’t entirely eliminate the problem of employees trying to take advantage of FMLA leave and intermittent FMLA, but they will help decrease FMLA abuse.