Intermittent-Leave Abuse? Double-Check Facts Before You Act

Do you have employees on FMLA intermittent leave? Are they leaving work early for “medical reasons” at predictable times? Then your organization may be the victim of intermittent-leave abuse.

It may be tempting to discipline or fire employees whose leave patterns (e.g., falling on Mondays or Fridays) suggest abuse. But you’re better off investigating thoroughly before you act. 

Why? If you’re wrong and the employee can prove he or she really was suffering from whatever ailment or condition the intermittent leave covers, you won’t have much of a defense when he or she sues.

Recent case: Evet Vaughn, who has had a heart disorder since she was a teen, worked as a dealer at Bally’s Atlantic City. She also had a part-time job at the Borgata, another Atlantic City casino.

Vaughn had applied for and was granted intermittent FMLA leave so she could leave early on days her heart problem (her blood sometimes flowed backward through her heart valves) caused pain. She would then go home, take medication and rest.

All went well until she left early toward the end of a shift at Bally’s and went home. She claims she took her medicine and a nap, felt better and went to the Borgata for her shift. While she was dealing blackjack, one of Bally’s managers strolled by.

Later that evening, Vaughn got ill and went to the hospital. But when she returned to work at Bally’s, she was fired for fraudulently using intermittent leave. She sued and the court ordered a trial. In lieu of Bally’s conducting its own investigation, now a jury will decide whether Vaughn had indeed been sick and later recovered enough to go to her second job. (Vaughn v. Bally’s, No. 06-1254, DC NJ, 2007)

Final note: Worried about employees using intermittent leave to work a second job? Solve the problem by prohibiting moonlighting.