Thwart FMLA abuse with periodic calls, check-ins

Issue: Many HR professionals believe they've unwittingly approved FMLA leave for fraudulent reasons.

Benefit: A new court ruling makes it easier for you to check up on employees on FMLA leave.

Action: Thwart FMLA abuse by contacting employees on FMLA sick leave to make sure they're resting, not partying.

Sometimes, an employee's FMLA request for his own illness just doesn't "feel right." Maybe it's a Monday/Friday pattern of leave, or some other suspicious reason. Well, we have good news: Spotting and disciplining FMLA abuse just got easier.

As a recent court ruling shows, your organization can call and check on employees to make sure they're resting at home during FMLA medical leave. Or you can require them to contact you whenever they leave the house during their sick leave. That way, you can ensure employees aren't just playing hooky.


Case in point: David Callison regularly took time off for anxiety and stress from his city maintenance job, so the city added him to its "sick abuse" list and required him to obtain a doctor's note for all sick days. He eventually was approved for three months of FMLA leave.

The city expected sick employees to stay home, except for doctor's appointments or other reasons related to the sickness. Sick employees had to call a sick-leave "hotline" when leaving home for any reason while on sick leave. Plus, the city checked up on sick employees with calls and personal visits.

Callison twice was "caught" away from home without having called the hotline. When he returned from leave, the city suspended him for violating the call-in policy. He sued, alleging that he had a right to be left alone while on FMLA leave. A federal appeals court tossed out his case, saying "nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave." (Callison v. City of Philadelphia, No. 04-2941, 3rd. Cir., 2005)

Final tip: Arm your FMLA policy with teeth by creating penalties for those who violate the call-in rules. Make sure employees on FMLA leave realize that they don't have an unqualified right to be "left alone" while enjoying time off at your expense.

Require details for FMLA leave requests

You've no doubt had employees call in sick with vague excuses and other less-than-convincing reasons. Can you discipline those employees for unexcused absences without fearing they'll turn around later and claim those aches were truly a "serious condition" that warranted FMLA leave?
The answer is "Yes." Employees must provide enough details at the time they request leave that their illness may amount to an FMLA-covered condition. Simply calling in "sick" isn't enough to trigger your need to alert them of their FMLA rights.
Case in point: When Michael Woods walked off his car factory job early, his supervisor warned him he could be fired for any further unexcused absences. The next day, he did it again.
The following workday, Woods called in "sick," saying he had a doctor's appointment. The doctor prescribed anxiety medication and wrote a note advising Woods not to return to work right away. But Woods didn't pass that information on to the company right away. Instead, he called in "sick" the next morning, too.
The HR department asked Woods to explain the absences. He didn't, so the company fired him. Only then did he bring up the anxiety issue and doctor's note. He filed an FMLA lawsuit, but the court tossed it out, saying Woods never showed that he needed FMLA leave despite being given several chances. (Woods v. DaimlerChrysler, No. 04-1065, 8th Cir., 2005)
Bottom line: If you fire employees for unexcused absences, they can't provide after-the-fact proof of their FMLA-qualified condition. They need to show their cards up front or not at all.