Abuse?

safety

EE is at the termination stage for attendance and has a recurring attendance problem for several years. Two days ago he went to the emergency room for what he claims was a migraine. The emergency room doc gave an injection of toradol and benadryl for this condition. I sent FML paperwork to him certified registered return receipt request yesterday. Last night he was observed by a manager in a local restaurant having a gay old time until he realized he was seen by management and then changed his demeanor by holding his head down and changing his behavior. This morning he came in to work and after an hour complained of a migraine and was sent home. We suspect abuse and would like to put a PI on him as he works a second job for his brother and we suspect that is what he is doing, working at his second job.

While I know migraines are specifically covered under FML is there anything we can do to stop his abuse of the system? We have considered sending him to a physician of our choice for a diagnosis but I suspect that will not produce favorable results for us. If we put a PI on him and he is observed in a situation not normal for someone who has a migraine can we deny FML and terminate?

nohr4u1yr

If he has had a reoccuring attendence problem for several years why is he still there in the first place?

What he is doing outside of work really doesn't matter - all's you can do is wait to receive the FMLA paperwork back to determine if he qualifies. If he returns the paperwork within the 15 days and he is approved let him burn up his 480 hours then enforce your attendance policy. Just be sure that you are treating all employees the same way inregards to your attendance policy.

safety

He gets right on the edge of the cliff ready to take the plunge then backs off and starts to come to work when scheduled. We track % unavailability and our trigger for discipline is when an ee reaches 2.5% unavailability for the month and for the year. We suspended him last month for this and now he has found an out. I know I sound like a doubting Thomas because I am in this case. I have sent the paperwork to him for certification and will wait for the results. I suspect he will miss a day before I receive the paperwork and if there is not a reason stated he’s gone.

Brad Forrister

And since migraines come and go, catching him at a restaurant having a gay old time a day or two after going to the emergency room may not mean much.

Brad Forrister
VP/Content
M. Lee Smith Publishers

Don D

Aren't there some sort of city codes that would prohibit someone from having a 'gay ole time' in a public restaurant?

It also occurs to me that even people with migraines have to eat.

safety

Merriam Webster’s TENTH EDITION
Gay, Keenly alive and exuberant : having or inducing high spirits : given to social pleasures.

A major symptom of a migraine is nausea and the inability to eat or keep food down.

Don D

'Scuse me Doctor Safety. Can you tell us how many days after migraine onset one might be able to take nourishment at a restaurant? I can just see the private investigator now, logging what's being eaten and in what venue and after the passage of how much time. I've never had a migraine and have zero tolerance for FMLA abusers, but this suggestion is over the top! x:-)

safety

Ouch.

globex

Don:
My wife has had migraine's for years. Often they fun two - four days. With a new drug she takes, if she gets it in time, it goes away in about an hour. However, the drug is very expensive - imitrex. I would say the deciding factor is, if in fact the 'ee's behavior changed after being noticed, then they might be faking.
Jerry

WT

I read a rather interesting case along these lines recently. A nurse had difficulty with her supervisor and got a doctor to let her off on FMLA leave for job induced stress. She also moonlighted at another facility as (you guessed it) a nurse. She continued to work there while out of her "day job" on FMLA leave. When the employer found out, they wanted to terminate her. The judge in his infinate wisdom ruled that she did not abuse FMLA leave as the doctor did not say she could not work anywhere but specifically had stress at the day job and could not work there.

Don D

That's exactly right. FMLA instances are 'situation specific', not 'job specific'.

System

Safety,

I think the main issue here is, How can you tell if he really has a migraine and how much leave he really needs each time? Maybe you can get the answer with some very specific questions to a doctor (yours or his).

Good luck!

James Sokolowski
HRhero.com

Don D

Where do you get off with that James? The employer is not allowed to question an employee's doctor. And to question 'yours' is totally unrelated to the employee-specific situation.

System

I was referring to the FMLA certification process where the er can get the ee to get a clarification from his doc or get a second opinion at the er's expense. Of course, I didn't write any of that. Guess I had one of Safety's brain burps. #-o

James Sokolowski
HRhero.com

safety

Sometimes I have a brain burp and I guess this was one of those times. As I stated in #3 above I have sent the FML forms and patiently waiting out the time frame for their return. I guess I was thinking more along the lines of WC abuse because in the past we have been successful with PI’s and catching an ee in a situation that their WC physician stated they couldn’t do. Physicians tend to get a little pi$$ed when they find out patients are faking or not following their directions/restrictions.

I have no doubts this ee is abusing the ‘system’ but also do not want to be an abuser myself. I appreciate all the advice from my Forum friends, thanks for bringing me back to reality. x;-)