There are right ways to root out FMLA abuse, and then there are the ways that put employers at risk of writing big checks to an employee. Here’s an unfortunate example of the latter:
In Diamond v. Hospice of Florida the plaintiff, Jill Diamond was a nurse working at a hospice facility. When her own parents became ill and needed her help to care for them, she requested and began taking intermittent FMLA leave in 2013, concurrently using her PTO time as required by policy. The company would routinely send her warning notices that her PTO time was running low with a reminder to avoid unpaid absences (not a great idea).
In March of 2014, upon learning of her mother’s serious health issue, she requested the following day, Friday and the next Monday as FMLA leave. This leave was approved. Upon her return, she was told that she needed to obtain an updated FMLA medical certification (which is fine) and at the same time was told that if she was working another job that she would be fired (which is not fine). Along with the updated medical certification, she was also directed to provide proof of appropriate use of the leave, such as travel or health care receipts (which is really not fine). Diamond was told that she would have to provide this type of documentation whenever she took FMLA leave with less than 30 days' advance notice.
To make matters worse, on March 31, Diamond signed and submitted two requests for FMLA leave to care for her parents. The first request covered April 2–4 and 7–8 (April 5–6 was the weekend). The second request covered April 14–18. On April 2nd, the company told her that it “needed receipts to verify where [she] said [she] would be,” which “can include food receipts in the city where your parents reside, anything from the hospital with dates you were out (discharge papers), [or] any receipts for lodging, food or gas in the vicinity of your parent's home.” Further, the company issued a notice to her which stated “Your continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.” (this is really bad too.) The plaintiff submitted the medical certification along with a note from her parents’ doctor confirming that she attended an appointment.
Shortly thereafter, the company discharged plaintiff for poor performance. It should be no surprise that she brought suit for FMLA interference and FMLA retaliation. It should also be no surprise to readers that her case is headed to trial after the court found that the company’s behavior provided plenty of facts to support her claims.
No doubt exists that FMLA is ripe for abuse, especially intermittent FMLA, and especially when the use is for care of a family member. The case of Jill Diamond and Hospice of Florida is an example of risky ways to ensure against abuse. Employers have other methods of ensuring that this kind of leave is used only for legitimate purposes. While requesting a medical certification is obvious, if that certification does not indicate how often medical or treatment appointments are required, or what kind of care is needed, it is appropriate to ask the employee to provide that type of information or to have the employer’s HR person call the doctor to clarify information in the certification. If the employer suspects abuse, surveillance is always an option if the issue is whether the employee is where he or she claims to be. It is never acceptable to notify the employee that their FMLA protected leave is compromising the operation of the employer.
When in doubt about what to do if FMLA abuse is suspected, it is always safest to contact your labor and employment lawyer before taking action.