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The Practical Employer

Employee’s Misuse of Medical Leave Grounds FMLA Claim

Watch the schedule of absences closely and aggressively pursue potential fraud.

WF_WebSite_BlogHeaders-11Employers often tread too cautiously when handling employees on FMLA leave. Despite this caution, courts will to side with an employer that terminates an employee after uncovering abuses of FMLA leave.

Case in point? Sharif v. United Airlines (4th Cir. 10/31/16).

Masoud Sharif and his wife, both employees of United Airlines, took a scheduled out-of-country vacation from March 16 through April 4. Sharif’s spouse used approved vacation time for the entire vacation. Sharif, however, was unable to obtain approved time off one day of the vacation, March 30.

Sharif did, however, have an FMLA medical certification on file for an anxiety disorder. On the morning of March 30, Sharif called United from his vacation in South Africa and requested intermittent FMLA leave for that day. He later unpersuasively tried to convince his employer that his “anxiety” arose after he was unable to locate a flight home for his March 30 shift.

United investigated Sharif’s use of FMLA leave for a shift in the middle of his vacation. Sharif resigned his employment (and filed suit) after United advised him of its intent to terminate his employment for FMLA abuse and dishonesty.

The court had little difficulty in concluding that Sharif had no business pursuing an FMLA retaliation claim.

The FMLA serves the important purpose of allowing employees to take leave for legitimate family needs and medical reasons, but it is not a right that can be fraudulently invoked.… These goals require predictable policies that ensure to the extent possible and consistent with the FMLA that proper personnel will be on duty. While a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused.…

So it is here. The evidence taken as a whole plainly paints the picture of an employee who used FMLA leave to avoid interrupting his vacation, and then gave a variety of inconsistent explanations for his behavior upon his return.

Intermittent leave the easiest form of FMLA for an employee to abuse, because the employee’s absences are already pre-approved. So, what is an employer to do?
1. Use the FMLA’s re-certification processes to your advantage. 

  • As a general rule, an employer can request medical re-certification every 30 days.
  • However, if the employee’s initial medical certification indicates that the minimum duration of the condition is more than 30 days, the employer must wait until that minimum duration expires.
  • In all cases, an employer may request a re-certification of a medical condition every six months in connection with an absence by the employee. In other words, even if the medical certification indicates that the employee will need intermittent leave for a period in excess of six months (e.g., for a lifetime condition), the employer is be permitted to request re-certification every six months in connection with an absence.
  • An employer may also request re-certification in less than 30 days if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

2. Watch the schedule of absences closely and aggressively pursue potential fraud. In cases of intermittent leave, do you see a suspicious pattern? Is an employee taking intermittent leave every Friday, or consistently on days after holidays (or during a previously scheduled vacation)? If so, you may have a change in condition that enables you to request a re-certification. It is also important to require all employees (including those on intermittent FMLA leave) to follow your normal call-in procedures for reporting an absence, absent unusual or exigent circumstances.

Following these steps will help you uncover and eliminate fraud by employees who are trying to game the FMLA system.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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