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Suspect employee is scamming FMLA leave? Investigate–and discipline if it’s true

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in Firing,FMLA Guidelines,Human Resources

When an employee takes FMLA leave because her physician says she’s too sick to work and needs to stay home, it’s natural to assume she’ll follow the doctor’s orders.

But what if you discover that she isn’t—and is instead working for someone else during her leave? Can you terminate her? Of course.

As long as you have a reasonable belief that she’s using FMLA leave for something other than its intended purpose, a court is unlikely to second-guess your disciplinary decision.

Recent case: Jadwiga was a physician in a municipal agency. When she developed ulcers and clinical depression, her doctor certified that she needed FMLA leave and couldn’t do her job.

The certification restricted her to her home and stated that she could “not work/attend school.”

That didn’t stop Jadwiga from doing work for another city, telecommuting from her home. She was terminated for abusing FMLA leave.

She sued, alleging interference with her FMLA leave rights.

The court threw out her case. It reasoned that she was fired because her employer reasonably believed she was abusing FMLA leave. After all, if she had been ordered to stay home and do no work, working for another city certainly constituted FMLA leave abuse. (Warwas v. City of Plainfield, No. 11-1736, 3rd Cir., 2012)

Final note: Be sure that you investigate all suspected leave abusers, not just employees who take FMLA leave.

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