by Mindy Chapman, Esq.

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 submitted an FMLA leave request for those same dates. Hmmmm … smell fishy?

Case in Point: Michigan school bus driver Theresa Moran was planning to get married in Florida, so she requested additional vacation leave. Her supervisor granted the request on the condition that Moran have no more attendance problems. But that didn’t happen. So her supervisor denied the extra vacation time.

A few weeks before the trip, Moran submitted a handwritten doctor’s note that requested FMLA leave due to her “acute situational anxiety.”

Suspicious, the school tried to call Moran at home, but she never picked up or returned calls. The school requested additional medical records, but Moran refused to cooperate. After she refused to sign a “last-chance agreement,” Moran was fired.

She sued, saying the school retaliated against her for exercising her FMLA rights. But the school claimed Moran wasn’t protected because her leave request was for an illegitimate purpose (vacation), not a serious medical condition.

The court sided with the school district, saying the “highly suspicious” nature of Moran’s leave, combined with her history of excessive absenteeism and failure to answer phone calls, demonstrated that the district held “an honest belief” that she was misusing FMLA leave. (Moran v. Redford Union Sch. Dist., E.D. Mich.)

3 lessons learned

You can defend 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 termination reason.

2. Review. Look carefully at all doctor’s notes and certifications to see whether anything is unusual. In this case, Moran’s return-to-work date was altered, which even the court said was “suspicious.”

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

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Author: Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.

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