Employees with chronic medical conditions that flare up unpredictably may be entitled to. But that can create scheduling nightmares for employers. And , by its nature, is subject to abuse. After all, an employee on intermittent leave can simply call in and explain his condition is acting up.
But that doesn’t mean employers are powerless when they suspect abuse.
If you notice an odd pattern such as using intermittent FMLA leave around holidays or other days off, the employee may be creating his own mini-vacation breaks without having to use precious vacation or personal days.
The best approach is to carefully document your suspicions. For example, list intermittent leave requests and when they happen to coincide with other time off.
Then launch an investigation. You may obtain concrete evidence that the employee who claims to be laid up is actually on the golf course, working in the yard or engaging in other activities sick people don’t normally do.
Recent case: Ohio Bell Telephone employee Erik Tillman often had to lift 100 pounds and climb ladders. He suffered from lumbar degenerative disk disease, a chronic back condition. His doctors certified that he needed intermittent leave because the condition caused intense pain when it flared up.
After Ohio Bell approved intermittent leave, Tillman dutifully informed his bosses when he needed time off. After a few months, supervisors began to notice that the requests always coincided with other days off. That meant he regularly got three- or four-day weekends.
HR looked at his leave record and decided to investigate. The next time Tillman used intermittent leave, it also coincided with days off. An investigator secretly filmed Tillman doing yard work, working on trim for his house and running errands in his car, apparently not in any kind of pain.
When confronted with the evidence, Tillman claimed he had taken drugs and a cortisone shot that helped his mobility. Ohio Bell fired him anyway for dishonesty.
Tillman sued, alleging interference with his right toleave. He argued that he really had been incapacitated, but was able to engage in household activities because of the medication.
The court dismissed Tillman’s case. It reasoned that as long as Ohio Bell honestly believed it was discharging an employee for abusing leave, it was irrelevant whether the employee’s time off was legitimate. What counted was the employer’s honest belief—backed up by evidence of the suspicious absences and video recording catching Tillman acting in ways inconsistent with his condition. (Tillman v. Ohio Bell Telephone, No. 3:09-CV-2351, ND OH, 2011)
Final notes: Investigate all irregular absence patterns, not just for employees on FMLA leave. Otherwise, if it turns out that other employees have similar patterns that indicate potential abuse, your actions may not look reasonable. It may look like you are targeting only those using protected FMLA leave.
Remember, the key to successfully defending any employee action is to treat all employees equally. Do your own informal audit before taking final action.
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