FMLA Leave
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16 Posts
I have an employee who went on FMLA leave for 6 weeks for a hysterectomy. She came back very tan, and when asked where she got her tan, told us that she went to Florida on a vacation with her husband. Is this legitimate? How do we proceed. This has never happened before.
HR Manager
Eye Clinic
Comments
I agree with BevHunt's assessment of this. Are you hearing rumors that she didn't have the surgery and was just out for 6 weeks of leave?
Look at it this way, at least she took a vacation while out on this 6 weeks of leave. I have seen many employees have surgery like this, then come back for a month or so and then request a week of vacation to go away with their family.
Would you be asking the same question if you knew an employee had a 2nd home in another state and they decided they were going to that other home to recuperate because the weather is warmer in that state? I have had employees who have done this when they have had surgery.
Does the employee have certification from the doctor saying she needs to be out for 6 weeks? If so, then it is legitimate.
Knowing what my mother went through when she had a hysterectomy, this could very well have been a possibility. My mother was somewhat immobile in that she couldn't walk or stand for long periods of time. For approximately 6 weeks, she did a LOT of sitting and resting. Where the employee did the recuperating is immaterial.
There is nothing wrong with going on vacation during FMLA leave. I took my 2 month old to see my sister in CA during my FMLA leave.
As long as it is verfied by the employee's doctor and she truly did have the procedure, then who is to say she can't rest and heal in a warmer climate.
That the employee called it "vacation" doesn't really matter. I think some people get a little cranky when a person on job-protected leave isn't strapped to a gurney, requiring 24 hour wound care as they recover from their invasive procedure. A hysterectomy is even more invasive than a C-section birth, which doctors in my experience of reading their notes and certs generally say takes 6 weeks of recovery. The recovery usually has to do with avoiding activites that stress the abdominal wall or other areas affected by the condition or the procedure. Reclining in front of day time television and reclining by the pool both accomplish the same end.
If I were following up on suspicion, I'd be interested in knowing where you are located, how this person made it to Florida, and when they went. Laid back in a car seems reasonable fairly soon after the procedure. Flying? Not so much. Not until much later in the recovery. If these things don't add up right in your head, you can consider challenging the initial certification and verifying that the procedure occurred. Do not request a recert if you believe that the employee is lying because you can't challenge that one.
If the leave was certified by a health care provider who stipulated 6 weeks of leave, then I wouldn't take a suntan alone as evidence of fraud.
Hey, do you have a reason to be suspicious of this particular employee or think she is lying?
This major surgery isn't "back pain" or other vague malady. I've never heard of an employee "faking" a hysterectomy to go to Florida.
I'd also be very very careful that your suspicions do not lead to any type of retaliation.
The example I have seen more clarification on is the one in which an employee on FMLA is seen working a second job during the FMLA leave, and the DOL's opinion on that is in Section 825.312(g) and (h) of the Federal Register and states "(g) An employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions. (h) If the employer has a uniformly applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained as in paragraph(g) of this section."
Do you have any company policies on what employees are allowed to do during a leave of absence? I am suspecting the answer will be no. You can hold employees on FMLA to the same standards (call in requirements, etc) as others on leave. But you can not hold them to a higher standard.
The only way you could do anything about this would be to prove the employee didn't have a hysterectomy at all. As in this example: http://federalfmla.typepad.com/fmla_blog/employee_fraud/index.html
HRforME is dead on.
The retaliation side of this really goes very deep and, in my opinion, especially as it ties to sex discrimination. For example, would you feel the same way if this person had compound fractures of both legs and was out for a similar or even longer amount of time and opted to do part of her recovery and rehab work (medically required) in some exotic location (not medically required)? Even if you would feel the same, is that a question you would like posed rhetorically before a jury?
It's not illegal to get a tan or enjoy perfect silica sand beaches while recovering from a serious health condition.
There are ways to formulate policy governing activities on leave but their enforcability varies from circuit to circuit. In some circuits, depending on how the policy is written, it could be seen as a tool for preventing people from using their FMLA rights by intimidation. If you have such a policy and it wasn't run by legal, I would be very careful about enforcing any part of it. There is no problem with enforcing your standard rules about other employment as long as they apply to all persons all the time.