It’s one of the most challenging problems—an employee with a chronic health condition says she needs and uses it as an excuse to take time off whenever she wants. You suspect she’s taking advantage of your organization, but worry that turning her down may trigger an FMLA lawsuit.
Don’t roll over. Here’s how to make sure intermittent leave is really necessary and not just an excuse to take a “mental health day”:
- Get medical certification for the employee’s underlying serious health condition. Intermittent leave applies only to serious health conditions.
- Have the employee’s health care provider verify the need for intermittent leave. Leave must be medically necessary and related to the underlying condition—chemotherapy appointments or dialysis, for example.
- Once the employee provides appropriate certification, don’t request more until the end of your FMLA benefit year. However, you can require verification that a particular absence was related to the underlying serious health condition.
Recent case: Gia Hegre managed a cosmetics store in Augusta until she was fired for allegedly calling her boss a vulgar name during an argument about leave. Hegre, who has bipolar disorder and high blood pressure, wanted two days off because she was “overextended.”
The company had allowed Hegre to take earlier, but she had never requested intermittent leave. Hegre argued that she was fired for trying to take intermittent leave.
The court tossed out the case. None of Hegre’s medical providers had approved intermittent leave. Her statement that she was overextended didn’t constitute notice she wanted FMLA leave. Employers must look into whether an employee is eligible for FMLA leave when the employee provides enough information to put the employer on notice. Hegre’s statement wasn’t enough; plus her name-calling was insubordination. (Hegre v. Alberto-Culver, No. CV-05-031, SD GA 2007)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Make sure employees--and bosses and HR--know exactly how to call in FMLA absences
- FMLA changes are here — and even more are on the way
- No individual liability under FMLA for public employers
- Always consider how jury might see retroactive actions