FMLA abuse

shendrickson

We have an employee at our facility that has been taking her elderly parent to the doctor for her doctors appointments. Unfortunately for her supervisor the women takes the entire day off even though it is not medically necessary for her to spend the entire day with her mother. She and her sisters share the responsibility of transporting her mother and she has a nursing service that looks in on her mother. I am new to this particular facility but was under the impression that unless the extra time that she is taking is in conjunction with a doctors insturction that there is a medical necessity for her to do so, the entire absence would not be covered under the FMLA. The mother does not live with the employee, she lives on her own and with other care providers assisting the employee in the transportation of the mother I am not completly certain that she should have been granted FMLA in this situation in the first place. Please let me know what you think. Has anyone else ran into a case like this. Since this FMLA was already in place when I came to this facility, I am hesitant to take action until I know for certain what that course of action should be.

bsa

I'm assuming that someone has spoken with this employee about why it takes a full day to take her mother to the doctor. First impression says that she made sharing arrangements with a sister, so she has attempted to reduce the amount of interference with her own job. This is intermmittent FMLA and you're counting hours away from work ... Is it affecting her ability to perform her job? Is this a daily, weekly or monthly appointment? Is it really worth pursuing?

Once granted, a way to change it would be if it has been 30 days since medical certification, you get another physicians report? By getting an update, you can then address the issue of 4 hours vs 8 hours to accomplish the doctor's appointment. FMLA is so wishy-washy, I would check with my attorney before pushing the issue too far. You know, flu wasn't a FMLA serious health condition until someone sued! On the upside, you don't have ADA to contend with!!

Brad Forrister

This falls under the "intermittent leave" provision of FMLA, which carries with it a requirement that the employee attempt to schedule doctor visits, etc., to avoid disrupting the employer's operations. So assuming you're right that there's no medical necessity for her to spend a whole day for the doctor's visit, you should be able to require her to return to work.

Most of the discussion I've seen is of the opposite issue - employers not wanting to worry about 2-3 hour leaves and wanting to force the employee to take whole days.

Brad Forrister
M. Lee Smith Publishers

Nick

The other individuals have made good points and, as usual, the answer to most HR questions is, "It depends." If you would like to tighten up FMLA leave and send a message to the rest of your workforce, request that the doctor inform you of the time involved in his/her appointments. If you believe that your employee is just taking a day off when her siblings share the responsibility then you have the option of hiring a private investigator to check up on her on during the time of the leave. This might sound like a big brother approach but you have the right to verify that the leave is being properly taken for you are paying, at least, benefits.

I had a simular circumstance. The employee was supposed to be taking care of his bed-ridden father. The employee was actually running his own construction business. I contacted the Department of Labor to check on the employer's rights and the DOL stated what I did above. I then contacted our attorney and we developed a plan. The reason that I took such extreme action is that the employee's abuse of FMLA became common knowlege due to the employee's bragging. Other employees were becomming disgruntled and I was informed that some were starting to plan their own FMLA vacations. The investigator took some excellent video of the employee working during his leave time. I contacted his union representative and showed him the video. The rep was ready to work out a deal before I even called the employee in. I told the employee, with his rep present that we had video of him working and he confessed a great number of incidents that we did not have on video. We gave the employee a choice of termination of employment or a lenghty suspension without any pay and he had to reimburses the company for the cost of all the benefits for the time that he was off and not complying with the FMLA requirements. We still paid for his benefits when he could prove that he was using FMLA properly. No grievances were filed and I did not have any abuse for the next two years. I then changed jobs.