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Suspect FMLA leave shenanigans? Follow the law’s certification requirements

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in FMLA Guidelines,Human Resources

Sometimes, employees whose vacation requests are turned down try to get time off by producing a doctor’s note. Some even up the ante by trying to claim FMLA leave.

If you really believe an employee is trying to pull a fast one, you have two options if you want to avoid possible FMLA interference charges.

The first—and safest—option is to request a medical certification stating the employee has a serious health condition. You can request a second opinion if you disagree with the certification, and you can even follow up with a third, tie-breaking certification.

Your other option is to reject the doctor’s note and discipline the employee. But that requires carefully analyzing the note. If it merely states that the employee is sick and should be off work, that may not be good enough. Employees are entitled to FMLA leave only if they meet the stringent requirements of the law.

Recent case:
Lorell Jones worked for the Chicago city government as a community organizer. She booked a trip to Jamaica, which she described as an opportunity to “detox and get away.” But soon after, her department announced no one could take vacation leave until after an upcoming event.

Jones then went to a doctor who provided her with a note stating she had neck pain and would be off work for two weeks. Jones submitted the note and left for Jamaica, where she did not seek any medical treatment. The city fired Jones.

She sued, alleging the doctor’s note constituted notice that she had sought FMLA leave.

But the court disagreed. It said the note contained no details or suggestions that Jones had a serious health condition—nor did she in fact meet any of the FMLA requirements. She did not seek care, there was no follow-up treatment and no medicine was prescribed. The court dismissed her case. (Jones v. City of Chicago, No. 07-C-4646, ND IL, 2008)

Final note:
A good way to discourage employees from abusing the system is to have them check in every day they are absent. As long as you require everyone to call in sick—not just from those on FMLA leave—doing so does not violate the FMLA.

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