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Fire away if worker abuses intermittent leave

by on
in FMLA Guidelines,Human Resources

It’s easy for employees to abuse intermittent FMLA leave. After getting approval to take a certain number of days off for a specific purpose like caring for a chronically ill child, employees sometimes decide it’s convenient to use that time for other reasons. But that’s not right, and the FMLA doesn’t allow it.

If you suspect intermittent leave abuse, take action. You can check up on the employee or ask her what she is doing on the days she designates as intermittent leave. If she’s not using the time as required, you can discipline her.

Recent case: Diamond worked for Comcast and used all of her regular leave to take Tuesdays and Thursdays off. When she ran out of leave and began accruing unexcused absences, she applied for intermittent FMLA leave to care for her daughter, who has asthma.

Her doctor certified the need and Comcast approved it. From then on, Diamond missed work every Tuesday and Thursday.

But then co-workers complained—and someone suggested Diamond was taking college classes those days. Comcast called her in to discuss the absences.

Diamond acknowledged doing other things besides caring for her daughter while on intermittent leave. She admitted, for example, going to the school library to study and being registered for college classes during regular work hours on Tuesdays and Thursdays.

Comcast fired Diamond and she sued, alleging interference with her right to FMLA leave.

The court tossed out her case. It said an employer isn’t liable for firing an employee it reasonably believes is abusing her time off by engaging in other activities. Since Diamond admitted using FMLA leave for other purposes, she had indeed abused her FMLA rights. (Sledge v. Comcast, No. 11-CV-2346, ND IL, 2012)

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