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Suspect FMLA mischief? Use certification rights before taking drastic action

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in FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

Some employees have learned how to play the FMLA game very well. For example, you may notice a suspicious Monday-Friday pattern of intermittent leave for an illness.

If you really believe an employee is trying to pull a fast one, don’t play the termination card right away. You’ll risk an FMLA interference lawsuit—an expensive ordeal even if you win.

Instead, your first—and safest—option is to request a medical certification stating the employee has a serious health condition. You can request a second opinion if you disagree with the certification, and you can even follow up with a third, tie-breaking certification.

Ultimately, after all that, if you have a good-faith, reasonable reason to terminate an employee because you believe he’s abusing intermittent leave, you won’t be liable even if the suspicion is wrong.

Recent case: A former Burlington Northern Santa Fe Railway train conductor got approval to take intermittent FMLA leave when his son’s asthma flared up. He used more than 65 intermittent FMLA days in three months.

Suspicious the employee might be abusing the leave, Burlington fired him. He sued. It turned out that several of the absences might not have been directly related to asthma flare-ups. One was for a doctor’s visit to work on a plan to reduce asthma incidents. Several occurred when a baby sitter was unavailable and the employee couldn’t find a substitute who knew how to handle an asthma attack.

The court said a jury should sort out whether he was entitled to FMLA leave and whether the employer had a reasonable suspicion that he was abusing leave. (Millard v. BNSF Railway, No. 08-C-3752, ND IL, 2009)

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