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Have you ever been suspicious about an employee’s request for FMLA leave? Employees have learned to play the FMLA game quite well in the 17 years since the law was passed. In this new case, an "attendance-challenged" employee was denied extra vacation leave for her wedding, so she then submitted an FMLA leave request for those same dates. Hmmmm … smell fishy?

Case in Point: Theresa Moran worked as a school bus driver in Michigan and was a member of the local union. She had a history of excessive absenteeism.

Moran was planning to get married in Florida, so she requested additional vacation leave beyond the five days allowed. Her supervisor granted the request on the condition that Moran have no more attendance problems going forward. But, that didn’t happen. Moran’s attendance problems continued. So, as expected, her supervisor denied the additional vacation time to go to Florida.

Plot twist: A few weeks before the scheduled trip, Moran submitted a handwritten doctor’s note that requested FMLA leave due to Moran’s “acute situational anxiety.” The original return-to-work date was scratched off and the new listed date was after her return from Florida.

Suspicious, the school tried to reach her at home but Moran never picked up the phone or returned four calls. The school requested additional medical records but Moran refused to cooperate. The school suspended her and she filed a grievance. When she refused to sign a “last-chance agreement” the school fired her.

Moran sued for retaliation for exercising her FMLA rights. The school district claimed Moran wasn’t protected by the FMLA because her leave request was for an illegitimate purpose (vacation), not a serious medical condition.

What happened next and what lessons can be learned?

The court sided with the school district. It said the “highly suspicious” nature of Moran's leave, combined with her history of excessive absenteeism and failure to answer telephone calls, demonstrated that the district undisputably held “an honest belief” that Moran was misusing her FMLA leave. Adding to this was Moran's refusal to agree to provide her medical records. The court concluded, “The district made a reasonably informed and considered decision before terminating Moran.” (Moran v. Redford Union Sch. Dist., E.D. Mich., 12/29/09)

3 Lessons Learned … Without Going to Court 

You can support yourself against any such claim by remembering the 3 R’s:

1. Record. Create an ongoing record of all discipline, including oral warnings. In this case, the court relied heavily on that record to support the employer’s position that it had a legitimate reason to terminate a poor performing employee. (For 8 tips on keeping legally sound performance logs for each employee, read How to Document Employee Performance.)

2. Review. Look carefully at all doctor’s notes and medical records to see if anything is unusual. In this case, even the court noted the scratched out date was “suspicious.” (For tips on spotting and stopping abuse, download our free report, FMLA Intermittent Leave: 5 guidelines on managing intermittent leave.)

3. Reach. The FMLA is complicated and it gets only more complex if union contracts are involved. Therefore, reach out to your legal counsel and other HR professionals for advice before terminating an employee who recently took any kind of leave permitted by law.

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