1 controlling fmla abuse harry j. secaras jason c

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1 CONTROLLING FMLA ABUSE HARRY J. SECARAS JASON C. KIM NEAL, GERBER & EISENBERG LLP TWO NORTH LASALLE STREET, SUITE 2200 CHICAGO, IL 60602 [email protected] [email protected] Congress enacted the Family and Medical Leave Act of 1993 (FMLA) to provide leave to care for the “serious health condition” of an employee or immediate family member, or the birth/placement of a child. The implementing regulations issued by the Department of Labor in 1995, however, did not provide the guidance intended: it has, since that time, created unnecessary and excessive administrative burdens, resulted in increased legal and administrative costs to employers, and a disproportionate number of disruptions to the workplace. Indeed, as a result of the lack of consistency in the manner in which the FMLA has been interpreted and enforced, FMLA abuse is wide-spread and difficult to prevent under the current regulatory scheme, with many employees manipulating the process to take unexcused leave under the claimed protection of the FMLA. Employers are not, however, powerless in managing the FMLA process, and can, with some careful planning and close monitoring, maintain control of FMLA leaves and chronic abusers. The following addresses some of the practical measures that employers can implement to curtail FMLA abuses. A. Managing the FMLA Process The first and most important ingredient in curtailing FMLA abuse is to establish and closely adhere to a solid FMLA policy. How your program is administered and how

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Page 1: 1 CONTROLLING FMLA ABUSE HARRY J. SECARAS JASON C

1

CONTROLLING FMLA ABUSE

HARRY J. SECARAS

JASON C. KIM

NEAL, GERBER & EISENBERG LLP

TWO NORTH LASALLE STREET, SUITE 2200

CHICAGO, IL 60602

[email protected]

[email protected]

Congress enacted the Family and Medical Leave Act of 1993 (FMLA) to provide

leave to care for the “serious health condition” of an employee or immediate family

member, or the birth/placement of a child. The implementing regulations issued by the

Department of Labor in 1995, however, did not provide the guidance intended: it has,

since that time, created unnecessary and excessive administrative burdens, resulted in

increased legal and administrative costs to employers, and a disproportionate number of

disruptions to the workplace. Indeed, as a result of the lack of consistency in the manner

in which the FMLA has been interpreted and enforced, FMLA abuse is wide-spread and

difficult to prevent under the current regulatory scheme, with many employees

manipulating the process to take unexcused leave under the claimed protection of the

FMLA.

Employers are not, however, powerless in managing the FMLA process, and can,

with some careful planning and close monitoring, maintain control of FMLA leaves and

chronic abusers. The following addresses some of the practical measures that employers

can implement to curtail FMLA abuses.

A. Managing the FMLA Process

The first and most important ingredient in curtailing FMLA abuse is to establish

and closely adhere to a solid FMLA policy. How your program is administered and how

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your employees understand and treat your FMLA program all flow from a solid FMLA

policy, a policy that incorporates each element required by law and takes into

consideration each element permitted (or not prohibited) by law. The policy must be

considered both in a vacuum -- is it legally compliant? does it accomplish the goals you

have set for your program? -- and in conjunction with each of your other personnel and

leave policies. It must assure that you are able to maximize your rights as an employer,

while still preserving the dignity and trust of your employees.

The following checklists provide three sets of practical considerations. The first

checklist provides a list of considerations for constructing an FMLA policy for general

distribution and use; the second checklist provides considerations for constructing a

second policy or training program for supervisors administering the policy; and the third

checklist provides a list of other policies that should be reviewed to assure consistency

between that policy and your FMLA policy.

1. Considerations Relating To A Solid FMLA Policy

The following is a checklist of considerations in constructing and auditing an

FMLA policy. Some of the elements discussed are mandatory and required by law, while

others are merely suggestions for inclusion to educate both your employees and your

managers as to their rights and responsibilities.

Define Eligibility Requirements. Include a definition of who is an eligible

employee in terms of both the employee’s hours/months of service and the employing

facility’s size.

Specify Amount Of Leave Available And Leave Year. Explain clearly how much

leave is available (12 weeks unless altered and expanded by applicable state law), the

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date from which it is calculated (date on which leave is to begin) and on what basis it

is calculated (rolling year, calendar year, other fixed year).

Define Qualifying Events. Explain what types of absences qualify for FMLA leave

as well as any restrictions (including spouses employed by same employer, time

limits for birth/adoption/foster placement leave, etc.).

Define Qualifying Relationships. What is a “parent”? What is a “child”? Do you

cover “domestic partners” as spouses? These definitions are especially important to

the extent that you provide voluntary coverage of relationships not otherwise

accorded coverage under the FMLA (e.g., in-laws, domestic partners, etc.).

Define Serious Health Condition. Explain what constitutes a serious health

condition and what does not. Provide examples and guidelines, but err on the side of

breadth, encouraging employees to seek leave whenever they feel that a condition

may qualify, letting you and their physicians (or your physicians as the case may be)

be the judge of whether the FMLA applies.

Demystify Intermittent Leave. This is a particularly important item in addressing

FMLA abuse. Clearly state when intermittent leave will be provided (when

medically necessary as certified by a health care provider) and when it will be

considered but is not required (subsequent to a birth/adoption/foster placement). Also

assert your right to transfer the employee to an alternative position and the

employee’s obligation to make the leave as mutually convenient as possible.

Specify What Notice Is Required. Cover the amount of notice time that is required

for both foreseeable leave (generally 30 days notice) and unforeseen leave (generally

as much notice as practicable, but a minimum of within 2 days of the leave

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beginning). Also specify that written notice is required, and when verbal notice will

temporarily suffice.

Require Medical Certification. State clearly when medical certification is required

and what must be contained in the medical certification, being sure to update and

conform requirements to current regulations and forms. Be sure to check state

privacy regulations (e.g., California).

Time The Medical Certification. Plainly convey that the employee will have 15

calendar days from the employer’s request to obtain a required medical certification.

Be sure to restate this time frame in a cover letter providing the current medical

certification form to the employee for completion.

Explain Second And Third Opinions. State when a second or third opinion may be

required, at whose option and at whose expense. Explain how the second and third

health care providers will be chosen.

Provide Recertification Guidelines. The recertification process, as discussed below,

is a critical tool to combat FMLA abuse. State when (no more than every 30 days)

and under what circumstances (consistently and uniformly) medical recertification

will be required, and for what types of leave. The FMLA expressly permits

employers to require that eligible employees obtain subsequent recertifications on a

reasonable basis. Recertification may be particularly helpful where there are

suspicious patterns of absence under the guise of FMLA leave, and can be asserted

where the available information casts doubt on the employee’s continuing need for

leave.

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Return To Work Certifications. State whether and when a return to work

certification will be required. Note that this may only be required when leave is taken

for an employee’s own serious health condition and when the leave is taken in a block

rather than intermittently.

Explain Paid/Unpaid Nature Of Leave. Expressly state whether the leave will be

paid or unpaid. Consider clarifying that leave is unpaid even for salaried exempt

employees.

Explain Substitution Principles And Limits. If paid leave (such as vacation, sick

or personal time or std leave) is to be substituted, state when and under what

circumstances (remembering that employees cannot be required to substitute sick

leave for FMLA leave taken for birth/adoption/foster placement). Explicitly state that

substitution of paid leave does not expand the amount of leave time available, but that

the substituted leave will be run concurrently with any FMLA leave available. Same

rule applies for substitution of unpaid leave.

State Group Health Insurance Rights. Explain that group health insurance benefits

will be continued on the same terms as if the employee were not on leave and that the

employee will be required to pay his/her share of any premiums. Expressly state the

potential consequences of the employee not complying with these payment

obligations (i.e., potential cancellation).

State Other Benefit Rights. What happens to other benefits (e.g., seniority,

vacation, bonus)? Will they continue to accrue? Are there any limits?

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Define Any Limits On Other Employment. Employers can prohibit employees

from working other jobs while on leave (including self-employment), but must

cogently and clearly state that limitation in their FMLA policies.

Reiterate Job Protections. State what job protections are accorded to the employee

and to what position he/she will be returned upon the conclusion of his/her leave (i.e.,

the same job or an equivalent position with the equivalent pay, benefits, status and

other terms and conditions).

Define “Key” Employee Status And Altered Rights. Provide for employees in the

upper 10% and set forth how their rights may change and when they will know about

such potential changes.

What Happens If The Employee Does Not Return? Clarify next steps if the

employee does not return, including (a) potential for additional leave (but require

employee to contact employer in writing to request/give status) and (b) potential for

being charged for employer’s share of premiums paid for group health insurance

benefits during leave if failure to return not related to serious health condition or other

circumstance beyond the employee’s control.

Coordinate Applicable State And Local Laws. If the facility is located in an area

to which state or local laws apply to provide different or expanded rights to family

and medical leave, be sure to analyze the effect of those laws and to either incorporate

them into a single policy with the federal FMLA requirements or put forth an

adequate disclaimer to allow for analysis and application of more generous state or

local law provisions on a case-by-case basis.

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Translate Policy Into All Languages Present. Be mindful of the FMLA’s

requirement that FMLA policies be translated into every primary language present

within the workplace. This can result in significant translation fees, but the failure to

provide the translation can result in a costly technical violation of the law.

Questions? Provide an avenue for employee questions about the FMLA and the

employer’s FMLA policy. Clearly state how and where employees can obtain extra

copies of the policy and the required forms.

These considerations and the employer’s FMLA policy and procedures should be

reviewed on a regular basis, at least annually, to assure compliance with any changes in

applicable law and/or to update any practices that have changed over time.

The policy should be published in any employee handbook put forth by the

employer, posted in a conspicuous location within each of the employer’s facilities, and

easily accessible and available in written form from an HR or operations office. The

policy also should be made a part of the employer’s new employee orientation programs

and the subject of employee and supervisor training on a periodic basis (generally

annually, but at least once every two years). Consider using a separate sign off form to

confirm each employee’s receipt of the policy either as part of an employee handbook or

as a stand-alone policy.

2. Considerations Relating To Supervisory Checklist/Training

After constructing a compliant FMLA policy, employers must be mindful of

providing guidance and training to HR personnel and front line supervisors. After all,

these are the individuals who will be responsible most often for identifying requests for

FMLA leave, for directing employees to the appropriate HR assistance and forms, and for

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advising of circumstances warranting additional consideration. In this regard, employers

should closely scrutinize the FMLA forms in place, to ensure that they capture all of the

information necessary to administer and monitor FMLA leaves.

HR personnel and supervisors also are the individuals that often are contacted first

when questions arise during leave and in considering an end to the leave and/or a return

to work. They are a critical component of an effective FMLA program.

In addition to training HR personnel and supervisors on the terms of the

employer’s FMLA policy and basic procedures, additional guidance should be provided

on the following points:

What constitutes notice? Employees often do not use the term “FMLA,” but they

do request sick days or leave or simply time off for reasons that would otherwise

qualify for FMLA protection. Supervisors must be trained to recognize these

situations and to facilitate the appropriate designation.

What makes for a good double check? Give supervisors ideas and techniques for

recording absences and reviewing absence logs to spot potential FMLA-qualifying

leaves and absences, and potential FMLA abuse.

What is a “serious health condition”? As noted above, supervisors must know

what is a serious health condition to be able to spot it. Even seemingly minor, non-

qualifying events can become FMLA events (e.g., the persistent flu or cold, a sprain,

even a headache), under the right circumstances.

How much time does the employee have to certify his/her condition? Supervisors

must understand that they cannot demand certification immediately or within a few

days or a week. Employees must have at least 15 calendar days after receiving a

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written request for medical certification to return such certification and qualify for

FMLA coverage.

When can an exempt employee’s pay be docked? Be sure the right supervisors and

HR personnel understand that FMLA leave can and should be unpaid, even if the

leave is taken intermittently by a salaried exempt employee.

What privacy rights are accorded? Any medical records an employee provides --

including medical records relating to a request for FMLA leave -- must be maintained

in a separate confidential file, in a secure location. They may not be, legally must not

be, simply dropped into a personnel file or even a supervisor’s separate file.

What about HIPAA? If the employer wishes to obtain information about the

employee from a group health plan, if it requests that a medical certification be sent

directly to it or if it wishes to ask any follow up questions of a health care provider, it

may do so only after the employee has completed an appropriate HIPAA

authorization form. Generally, such forms are provided (and required) by the health

care provider, but if that is not the case, then the employer should be sure to make

arrangements to have the necessary forms signed.

What if I think the employee is lying? Specific follow up and questioning of a

medical certification form is possible, but must be conducted with care and with due

regard for the potential claims and issues that may arise. Follow up is limited to (a)

having the employer’s physician follow up with the employee’s physician (after due

notice and authorization), (b) having the employee specifically consent to the

employer’s follow up, (c) having the employee obtain the necessary additional

information or follow up from his/her health care provider, and/or (d) getting a

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second (and possibly a third) opinion. The important thing is that supervisors and

HR personnel know not to simply charge ahead with follow up questions.

What if the employee wants more time? Be sure that supervisors intimately

understand the employer’s potential obligation to accommodate leave beyond the 12

weeks of leave accorded under the FMLA. Be sure that the supervisor’s response to a

request for additional leave is not to fire or threaten the employee, but to work with

the employer to get the necessary details and information to make an informed

decision as to whether additional leave is required or warranted.

How, and how long, must records be kept? Understand record retention policies

and procedures, and assure that they are updated regularly. (Current law requires that

FMLA-related records be maintained for 3 years.) Use a central clearinghouse to

assure proper document retention.

This training should be reviewed and expanded each year to cover any special cases or

abuse concerns that have arisen since the last training or that are of particular concern

within the employer’s facility.

3. Coordination With Other Policies

A good FMLA policy is not complete unless it is coordinated with and, as

appropriate, incorporated into other relevant policies addressing leave and related benefit

issues. Employers should consider each and every policy they have concerning these

subject matters to determine whether and to what extent reference to the FMLA policy

should be made within those other policies and/or reference to those other policies should

be made within the FMLA policy.

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Although not exhaustive, a sample list of other policies that should be considered

in this regard are:

Paid Time Off Policies. Vacation, sick leave, personal leave.

Disability And Medical Leave Policies. Long-term disability, short-term disability,

medical leave.

Workers’ Compensation Policies.

Parental Leave Policies. Maternity or paternity leave, adoption leave, foster care

leave.

Personal Leave Policies.

Collective Bargaining Agreements.

Individual Employment Contracts with Leave Provisions.

Essentially, any policies an employer has that may grant or limit rights to employees to

receive pay or leave for reasons that could also qualify for coverage under the FMLA.

In addition, efforts should be made to incorporate the FMLA’s statements and

requirements into any existing group health insurance plans. And, vice versa, to assure

that any limitations or rights conferred upon the employer by the FMLA are incorporated

into such plans of the employer.

The bottom line is that administering an effective and compliant FMLA is not

easy, but it is attainable with diligence and understanding. Employers that take the time

to audit and update their policies on a regular basis, and to stay abreast of the ever-

changing laws affecting their policies in this regard, will find themselves in good stead to

properly and legally administer the FMLA within their workplaces.

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B. Medical Certification and Recertification

1. Certification

The FMLA expressly provides that an employer may require that a request for

covered leave be supported by certification issued by the health care provider of the

eligible employee, and that the employee in turn is required to provide, in a timely

manner, a copy of the certification to the employer. The employer must advise the

employee of the duty to provide a medical certification (and a timeframe for doing so) at

the time of the request for leave. The employer also must advise the employee of the

consequences of providing inadequate medical certification, but if the employer finds the

certification incomplete, it must give the employee the opportunity to complete it.

Termination is not the proper response, and the employer may be held to have waived its

rights to challenge the leave if it fails to notify the employee that certification was

incomplete. Under the FMLA, medical certification is not considered complete, unless it

states:

the date on which the serious health condition commenced;

the probable duration of the condition;

the appropriate medical facts within the knowledge of the health care provider

regarding the condition;

for purposes of leave to care for a family member, a statement that the eligible

employee is needed to care for the son, daughter, spouse, or parent and an

estimate of the amount of time that such employee is needed to care for the son,

daughter, spouse, or parent; and

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for purposes of leave to care for the employee’s own serious health condition, a

statement that the employee is unable to perform the functions of the position of

the employee;

Further, for cases of certification of intermittent leave or leave on a reduced schedule for

planned medical treatment, the certification must specify the dates on which the treatment

is expected to be given and the duration of the treatment. For cases of certification for

intermittent leave or leave on a reduced leave schedule to care for one’s own serious

health condition, the employee must also provide a statement of the medical necessity for

the intermittent leave or leave on a reduced leave schedule, and the expected duration of

the intermittent leave or reduced leave schedule. In cases of certification for intermittent

leave or leave on a reduced leave schedule to care for a covered family member, the

employee must provide a statement that the employee’s intermittent leave or leave on a

reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse

who has a serious health condition, or will assist in their recovery, and the expected

duration and schedule of the intermittent leave or reduced leave schedule.

Employers who have reason to doubt the validity of the certification provided for

any request for covered leave may require, at its own expense, the eligible employee to

obtain the opinion of a second health care provider designated or approved by the

employer concerning any information contained in the first certification. In the event the

second opinion differs from the opinion in the original certification, the employer require,

again at its expense, that the employee obtain the opinion of a third health care provider

designated or approved jointly by the employer and the employee concerning the

information contained in the original certification. The opinion of the third health care

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provider concerning the information in the original certification is considered to be final

and binding on both the employer and the employee.

An employee who fails to provide the necessary certification is not considered to

be on approved FMLA leave and is not entitled to its protections. See e.g. Heard v. SBC

Ameritech Corp., 2005 WL 1802086 (E.D. Mich. July 27, 2005) (granting employer’s

motion to dismiss where employee who failed to provide medical certification form in

timely manner, notwithstanding employee’s claim that she faxed form to her health care

provider, who failed to send it back to employer). The employer may also request

clarification of the certification in the event of ambiguity or confusion, and the employee

must respond. See e.g. Rutschke v. Northwest Airlines, Inc., 2005 U.S. Dist. LEXIS

18725 (D. Minn. Aug. 30, 2005) (granting employer’s motion for summary judgment

where employer refused to certify employee’s request for leave under the FMLA because

employee refused to provide additional clarification from his health care provider

concerning his request for intermittent leave, where certification was vague and

ambiguous on how often and in what increments employee was authorized to take leave.)

2. Recertification

Even after the original medical certification process, the employer may require

that the eligible employee obtain subsequent recertification on a reasonable basis for

pregnancy, chronic or permanent/long-term conditions under continuing supervision of a

health care provider. An employer may not request recertification more often than once

every 30 days and only in connection with an absence by the employee, unless: (1)

circumstances described by the previous certification have changed significantly (e.g., the

duration or frequency of absences, the severity of the condition, complications); or (2)

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The employer receives information that casts doubt upon the employee’s stated reason for

the absence. 29 C.F.R. § 825.308.

If the minimum duration of the period of incapacity specified on a certification

furnished by the health care provider is more than 30 days, the employer cannot request

recertification until that minimum duration has passed. See e.g. Harcourt v. Cincinnati

Bell Tel. Co., 383 F.Supp.2d 944 (S.D. Ohio 2005) (employer policy requiring employee

to recertify medical condition every 90 days violated FMLA where employee’s physician

certified the need for intermittent leave for a period in excess of 90 days) This restriction

does not apply if: (1) the employee requests an extension of the leave; (2) the

circumstances described by the previous certification have changed significantly; or (3)

the employer receives information that casts doubt upon the continuing validity of the

certification. Id. The same restrictions apply for FMLA leave taken intermittently or on

a reduced leave schedule basis -- the employer may not request recertification in less than

the minimum period specified on the certification unless one of the above three

conditions is met. Id.

Each of the restrictions on recertification imposed by the regulations for the

various types of leave contains an express exception for recertification on a more

frequent basis in the event the employer receives information that casts doubt upon the

continuing validity of the certification. Employers accordingly can utilize the

recertification process as a means of combating suspected FMLA abuse. To illustrate, in

a recent opinion letter dated May 5, 2004 (FMLA 2004-2-A), the Department of Labor

explained that a pattern of Friday/Monday absences can constitute information that casts

doubt upon the employee’s stated reason for the absence, which then permits the

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employer to request recertification more frequently than every 30 days. The Department

of Labor cautioned, however, that there must not be any evidence that provides a medical

reason for the timing of such absences and that the request for recertification is made in

conjunction with an actual absence.

For instance, a recertification could be justified if a medical certification indicated

the need for intermittent leave for two or three days a month due to migraine headaches,

and the employee took such leave every Monday or Friday (the first and last days of the

employee’s work week). In addition to recertification, the Department of Labor has

taken the position that an employer may inform the health care provider that the

employee has a pattern of Friday/Monday or apparent excessive absences. In fact, the

Department of Labor further explained that nothing in the FMLA either prohibits an

employer from including a record of an employee’s absences along with the medical

certification form for the health care provider’s consideration in determining the

employee’s likely period of future absences, or prevents an employer from asking, as part

of the recertification process, whether the likely duration and frequency of the

employee’s incapacity due to the chronic condition is limited to Mondays and Fridays.

Thus, an employer who has observed such a pattern of potential abuse may ask the health

care provider, as part of the recertification process, if this pattern of absence is consistent

with the employee’s serious health condition. The employer, however, is prohibited from

direct contact with the employee’s health care provider, so would have to ask this

question by adding it to the medical certification form given to the employee for

completion by the health care provider, or seek the employee’s written consent to have its

health care provider contact the employee’s health care provider directly. Finally, the

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employer can have its health care provider contact the employee’s health care provider

for purposes of clarifying the information in the medical certification, but such contact

again may be made only with the employee’s express consent.

By closely monitoring employees on leave for suspicious patterns or changes in

the frequency or timing of the use of leave (particularly recurring intermittent leave

which is so often abused by employees), employers may be able to request recertification

of a serious health condition based on changed circumstances, placing the burden on the

employee to justify his leave.

C. Use of Surveillance to Track FMLA Abuse

Sudden and recurring requests for intermittent leave, often with little notice to the

employer, can be frustrating to employers particularly when there is some indication that

the employee is simply manipulating the FMLA policy to take days off, or mask a bad

attendance record, evidenced by suspicious absence patterns before or after weekends or

holidays. A case recently decided by the Court of Appeals for the First Circuit illustrates

that a properly maintained and enforced FMLA policy (with a stringent certification and

recertification processes), in conjunction with surveillance measures to track the activities

of employees who the employer suspects of FMLA abuse, can reduce the risk of claims

for excused absences under the FMLA and serve as an effective deterrent to other

employees from engaging in similar activity.

In Colburn v. Parker Hannifin/Nichols Portland Division, No. 05-1308 (1st Cir.

Nov. 18, 2005), the employee sued the employer following his termination, alleging

primarily that his employer fired him in retaliation for having taken protected FMLA

leave. In its defense, the employer responded that it had discharged the employee

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because he had told the company he was out sick with a migraine when he was seen

going to the gym, shopping, and driving around running various errands. The First

Circuit affirmed summary judgment in favor of the employer, holding that no reasonable

jury could conclude that this particular plaintiff was fired in retaliation for his exercise of

FMLA rights.

The employee had begun taking intermittent sick leave on account of intensely

painful migraine headaches, accompanied by “shooting pain, blurry vision, dizziness, or

nausea,” and missed twenty-five days of work in less than a four month period. On at

least three occasions during that time, the employer’s human resources representative

requested medical information that the company needed to substantiate his need for

medical leave and to determine his eligibility for disability benefits. The employee

repeatedly promised to submit the paperwork, but failed to do so. Toward the end of his

leave, the employer retained a private investigator to conduct surveillance of the

employee. The employer initiated the investigation because it became suspicious of the

employee’s activities for two reasons: first, he failed to submit the medical information

the company needed to process his disability application, despite three requests by human

resources personnel, and second, he could not be reached at home on days when he had

called in sick.

On one day, thirty minutes before the start of his shift, the employee called his

supervisor to say that he had a severe headache and would not be able to come into work

until later in the afternoon. Shortly thereafter, the investigator followed the employee as

he drove from his home to a gym. Thirty minutes after entering the gym wearing

workout clothes, the employee left in jeans and a shirt. He then drove to a video store,

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where he rented a video, and then to three variety stores. More than three hours after he

had left his home, he exited the third store with a paper bag containing what appeared to

be two bottles. Around the same time, he left a voicemail for his supervisor apprising

him that his migraine had returned and that he would not be coming into work at all that

day. The following day, the investigator observed the employee depart from his home

and repeat his activities from the day before. He went to the gym for about 30 minutes,

rented videos from two video stores, and stopped at a bank. He also visited two shopping

areas, where he seemed to have been searching for a payphone. Thirty minutes before

the start of his scheduled shift, the employee left a voicemail for his supervisor indicating

that he was ill and would not be able to work that day. After making that phone call, the

employee stopped at a variety store and purchased a six-pack of beer and some pretzels.

After reviewing the surveillance report, the employer’s representatives met with

the employee and informed him that he was being discharged, because his actions were

inconsistent with those of someone experiencing an incapacitating migraine. The court

concluded, in essence, that the employee had lied and found no violation of the FMLA.

Notably, the court awarded costs to the employer.

The employer in this case might have been able to avoid litigation had it

administered its FMLA program more strictly, by insisting and requiring the employee to

provide the medical certification mandated by the FMLA. While monitoring proved

effective in this case, it can be cost prohibitive and employers should take into

consideration any privacy concerns as dictated by state law. It also should be noted that

the employer in Colburn had conducted surveillance in the past on at least five other

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employees suspected of abusing their leave rights, who were treated no differently than

the plaintiff, so that the employee could not show that he had been singled out.

As illustrated by the Colburn case, monitoring employees on FMLA leave

suspected of abuse may provide the evidence necessary to justify taking action against

the employee. Surveillance, however, may not always be effective in court depending on

precisely what is observed, as illustrated in the case below.

The court in Jennings v. Mid-America Energy Co., No. 3:02-cv-90069 (S.D. Iowa

2003), held that an employee who was asked to resign or be terminated after she was

caught shopping while on FMLA leave could sue her employer for interfering with her

FMLA rights. The employee, who had been diagnosed with autoimmune disorders

including rheumatoid arthritis, arranged to take intermittent medical leave as necessary

for her condition. One day, she left work early because her hand was swelling and she

was experiencing significant difficulty using her keyboard and mouse. On the way home,

she stopped at a retail store to buy a gift for a co-worker’s baby shower the next day,

where she bumped into two other co-workers.1 She called in sick on the following day,

and that evening, she was again seen shopping by one of her co-workers. She called in

sick the following day as well. Upon returning to work on the following day, she was

given the choice of resigning or being terminated for misusing her leave time.

The court concluded that a reasonable jury could find that she was unable to do

her job when she left work, but that she was capable of stopping at a store on the way

home, explaining “The FMLA contains no requirement that an individual on intermittent

medical leave must immediately return home, shut the blinds, and emerge only when

1 The employee in this case was not the subject of surveillance, but the effect of bumping

into the co-workers was similar, in that the employer had evidence that she was out running

personal errands and shopping after claiming that she could not work.

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prepared to return to work.” In denying the employer’s motion for summary judgment,

the court determined that whether she was using her leave time for its intended purpose

was a decision for the jury. The court, however, rejected her claim for FMLA retaliation,

noting that, for an at-will employee, “employee dishonesty and misuse of leave time are

certainly valid and nondiscriminatory explanations for terminating an employee.”

Some employers, anticipating that employees may improperly claim that they

cannot work and need intermittent FMLA leave, have imposed requirements on

employees who take such leave to notify the employer whenever they leave their homes.

This is what the employer did in Callison v. City of Philadelphia, No. 04-2941 (3d Cir.

2005). The employer’s policy required employees to remain at home except to tend to

personal needs relating to their illness, and were subject monitoring (through phone calls

or visits) by a sick leave investigator. On two separate occasions, the employee took

FMLA leave but left his home without calling the employer. The employer attempted to

contact him at his residence, but the employee did not answer. The employer suspended

the employee, who in turn sued, claiming that the policy interfered with his FMLA leave

rights.

The Third Circuit affirmed the grant of summary judgment to the employer,

finding that the FMLA provision which allows employers to request second opinions and

medical certifications for leave did not limit the employer’s ability to implement its sick

leave policy, because the “certification provisions merely outline some of the employer’s

rights and employee’s corresponding allegations…It neither establishes an employee’s

entitlements nor provides an exhaustive list of an employer’s rights.” The policy did not

violate the FMLA, but simply set forth the obligations of employees on sick leave,

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regardless of whether the leave was pursuant to the FMLA. The court stated that

"Nothing in the FMLA prevents employers from ensuring that employees who are on

leave from work do not abuse their leave,” and concluded that the employer’s policy

neither prevented nor discouraged workers from taking FMLA leave.

These cases illustrate that, if an employer closely tracks the stated reasons for an

employee’s absences, and requires all leave requests to be supported by detailed medical

certification and, if appropriate, recertification, it is possible to control FMLA leave in

the workplace, and root out chronic abusers within the confines of the law.

NGEDOCS: 1268006.1