How to handle potential abuse of FMLA time off....
hhaynal
231 Posts
Here is the situation:
Exempt employee has FMLA documentation on file to care for child who is now in maintenance stage of cancer treatment. Employee will intermittently take time off claiming to manager that it is FMLA designated leave and states will work from home. The intermittent leave coincidentally falls around the prime times, for example, long weekends, holidays, etc. The employee's manager is the person who is now complaining that the employee is out of the office too much. Also, manager found out that on one of the days the employee was home caring for child, the employee was also out on a job interview.
Company pays exempts for sick time off and no number of days is designated. Included is sick time off to care for child.
Questions:
1) Essentially, it appears we are giving this person 12 weeks of paid sick leave, correct?
2) To stop this abuse, the company would need to implement a sick leave policy to cover exempts, correct?
3) It appears to be FMLA abuse since the requested time off is in the prime time slots. Any ideas how to thwart this practice?
All thoughts, comments, etc. welcomed. I'll be meeting with company nurse and HR on Monday to discuss this and other issues.
Exempt employee has FMLA documentation on file to care for child who is now in maintenance stage of cancer treatment. Employee will intermittently take time off claiming to manager that it is FMLA designated leave and states will work from home. The intermittent leave coincidentally falls around the prime times, for example, long weekends, holidays, etc. The employee's manager is the person who is now complaining that the employee is out of the office too much. Also, manager found out that on one of the days the employee was home caring for child, the employee was also out on a job interview.
Company pays exempts for sick time off and no number of days is designated. Included is sick time off to care for child.
Questions:
1) Essentially, it appears we are giving this person 12 weeks of paid sick leave, correct?
2) To stop this abuse, the company would need to implement a sick leave policy to cover exempts, correct?
3) It appears to be FMLA abuse since the requested time off is in the prime time slots. Any ideas how to thwart this practice?
All thoughts, comments, etc. welcomed. I'll be meeting with company nurse and HR on Monday to discuss this and other issues.
Comments
1) If the last certification is 30+ days old you can require updated certification along with a listing of the days used. I did this with one employee and the new certification had a distinctly more stringent leave allowance once the doctor was made aware of how the leave was being used.
2) You have the ability, under the FMLA and FLSA to "dock" an exempt level employee's pay for time missed under FMLA without jeopardizing their exempt status but keep in mind that this needs to be done for all EEs under FMLA, not just this one.
I know this isn't much but it's something. Hopefully some of the others will offer better advice.
James Sokolowski
HRhero.com
'You cannot telecommute unless you have childcare arrangements made.' Do you really think that policy could be defended, if challenged? What it says is, "We do not believe you can accomplish your work if you have distractions and we have determined that your child being at home is a disallowed distraction."
This calls for a separate thread.
We expect telecommuters to be just as productive as they would be in the office. We're talking about their actions while they're on the clock, not off duty.
I also replied in your other thread:
[url]http://www.hrhero.com/employersforum/DCForumID14/5786.html#4[/url]
James Sokolowski
HRhero.com
Edit:
I think I've been unclear. Our policy is directed at everyone who wants to telecommute and usually doesn't involve the FMLA. But the basic premise is the same: At any given moment, you're either working or not working, and our policy only applies when you claim to be working and ask to be paid for it.
James Sokolowski
HRhero.com
Our company does not have a telecommuting policy and as a result, my position has been that if the employee calls in and says she's staying home with child and states FMLA covered absence, I am going to request how time is to be covered. When the employee suggests that she brought her laptop and will work from home, I advise we do not have a telecommuting policy and that the FMLA will be unpaid unless she choose to burn a vacation day. I was just informed yesterday that the employee was just being paid whenever she called in for intermittent FMLA.
Not trying to be an ogre here, but she has been out, intermittently, during the last 12 months, the entire 12 weeks -- and getting paid for it while using none of her vacation!
And I agree that working from home with children is totally nonproductive. So I ask James, the telecommute policy is designed for those who can work from home ONLY if kids care is prearranged? The policy would not be used in conjunction with unpaid leave such as FMLA?
We consider telecommuting to be an assignment, not a perk. An ee who wants to telecommute on a regular basis has to go through an application process that looks at many criteria (including child care) to make sure the ee will be productive and accountable.
The thing with FMLA is that it's impossible to be working and be on leave at the same time. Even with intermittent leave, she's either working or not working at any particular instant. If she claims to work eight hours today, then she's not on FMLA leave during those eight hours and you can control what she does during those eight hours, the same as you do on a regular workday.
James Sokolowski
HRhero.com
And yes, for me, there's no way I could get much work done while taking care of a 20-month-old and a 2-month-old. Heck, no! Guess I'm not SuperMom after all.
I didn't know that was MLSP's policy until this thread was brought to my attention. I just told them that unless I could make childcare arrangements, I couldn't work (for MLSP, that is ... I now know that parenting and caring for others is the most challenging work I'll ever do).
While I ache when leaving my kids for several hours a day next door with a very trusted mother and friend (about as good as it gets short of having a babysitter come here), it's also something of a "sanity" break for me. The rusty cogs are starting to creak again and that does feel good.