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Suspect FMLA mischief? Use certification before taking drastic action

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Some employees have learned how to play the FMLA game very well. For example, you may notice a suspicious Monday-Friday pattern of intermittent leave for an illness.

If you really believe an employee is trying to pull a fast one, don’t play the termination card right away. You’ll risk an FMLA interference lawsuit and a potentially expensive verdict.

Instead, your 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.

Ultimately, after all that, if you have a good-faith, reasonable reason to terminate an employee because you believe he’s abusing intermittent FMLA leave, you won’t be liable even if the suspicion is wrong. Nevertheless, that’s a question for a jury to decide.

Employers that want to argue they had a reasonable suspicion the employee was cheating should be prepared to introduce concrete evidence supporting that suspicion. Example: surveillance tapes showing the employee engaging in activities inconsistent with his claimed illness.

Recent case: Terrance Millard, a former Burlington Northern Santa Fe Railway train conductor, got approval to take intermittent FMLA leave when his son’s asthma flared up. He used more than 65 intermittent FMLA days in three months.

Suspicious Millard might be abusing the leave, Burlington fired him. He sued. It turned out that several of the absences might not have been directly related to asthma flare-ups. One was for a doctor’s visit to work on a plan to reduce asthma incidents. Several occurred when Millard’s baby sitter was unavailable and he couldn’t find a substitute who knew how to handle an asthma attack.

The court said a jury should sort out whether Millard was entitled to FMLA leave and whether the employer had a reasonable suspicion that he was abusing leave. (Millard v. BNSF Railway, No. 08-C-3752, ND IL, 2009)

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