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You’re justified in firing employee you reasonably believe committed ‘Leave fraud’

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in Firing,FMLA Guidelines,HR Management,Human Resources

Here’s a surprisingly common situation that presents what looks like a no-win situation for employers: A worker with a high-pressure job and a heavy workload asks for FMLA and short-term disability leave for various minor health problems. The company approves the leave, expecting the employee back after 12 weeks.

Then as the leave nears an end, the employee comes back with a doctor’s note restricting her work to no more than eight hours per day. The company points out that the job can’t be done within the restriction. Instead it offers a less attractive position that doesn’t include mandatory overtime.

Suddenly, faced with the prospect of no job or a lesser one, the employee offers to get the restriction changed so she can keep her old job.

Sounds like she was lying in the first place, doesn’t it? How can the employer get out of this jam? If it has a solid “zero tolerance for dishonesty” policy, it can probably fire her for breaking that rule.

Recent case: Devi Cusack worked for News America Marketing, setting up store displays. The job regularly required long hours, sometimes 10 or 12 hours per day.

Cusack took short-term disability leave for several medical problems and then got her doctor to certify that she could work no more than eight hours per day.

HR explained to Cusack that the company couldn’t accommodate her restriction and offered her an inferior job. That’s when she said she would do whatever it takes to get her doctor to change the restriction.

But the next day, she turned around and asked for more time off instead. The company fired her, citing its strict honesty policy. It reasoned that her willingness and ability to change the medical restriction when faced with job loss or demotion was evidence she had persuaded the doctor to provide her with a false restriction in the first place.

She sued, alleging disability and FMLA discrimination. The court threw out her case. As long as her employer reasonably believed Cusack was trying to manipulate the disability system, it could fire her for dishonesty. (Cusack v. News America Marketing, No. 06-Civ-6166, SD NY, 2008)

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