Intermittent FMLA Absue
Deldra
14 Posts
We have a Certified Nursing Assistant (CNA) who is currently on an intermittent FMLA. In checking her attendance records since January 2009, she has a pattern of calling out on Fridays – not every Friday – and some Mondays which would give her four days off if she is not scheduled to work on the weekends. I know I can request a recertification – in connection with an absence – every 30 days. I also know that according to the new regs, I can speak with her doctor and submit attendance records to determine if the employee must be off work on Fridays and/or Mondays. However, my guess is he would say that based on her condition, she may need to call out but not necessarily on Friday or Monday. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
If that’s the response, what recourse do I have? Even if I speak to the employee, talk about the “pattern of absences” and she continues to call out, what can be done?
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We have a Certified Nursing Assistant (CNA) who is currently on an intermittent FMLA. In checking her attendance records since January 2009, she has a pattern of calling out on Fridays – not every Friday – and some Mondays which would give her four days off if she is not scheduled to work on the weekends. I know I can request a recertification – in connection with an absence – every 30 days. I also know that according to the new regs, I can speak with her doctor and submit attendance records to determine if the employee must be off work on Fridays and/or Mondays. However, my guess is he would say that based on her condition, she may need to call out but not necessarily on Friday or Monday.
If that’s the response, what recourse do I have? Even if I speak to the employee, talk about the “pattern of absences” and she continues to call out, what can be done?[/quote]
What would you say to her if you raised this ruckus and she said something like this: "I struggle through the week as well as I can and then I just can't do that fifth day. Sometimes, as a result of trying hard to stay at work, it causes an additional day of disability while I recover."
Depending on the condition, that could fly just fine and her doctor probably will not talk to you without talking to her first, if he or she will talk to you at all. Just because you can talk to the doctor doesn't mean the doctor's liability insurance company will let the doctor talk to you. As you must know, doctor's work in the patient's best interests and talking to you does not necessarily promote those interests, so the exercise may be futile anyway.
Good point but Friday isn't always her "fifth day!" There have been times she is off on Wednesday and Thurday and still calls out on Friday citing FMLA!!! It's clear to me and her supervisor that she is abusing the system. If I speak to the doctor, I only want to verify that she does not need to call out on Friday/Mondays for medical reasons. I can then use that information as leverage when speaking with her. At this point, we are willing to try any tactics as long as they do not violate the regulations!
Any more suggestions???????
Good point but Friday isn't always her "fifth day!" There have been times she is off on Wednesday and Thurday and still calls out on Friday citing FMLA!!! It's clear to me and her supervisor that she is abusing the system. If I speak to the doctor, I only want to verify that she does not need to call out on Friday/Mondays for medical reasons. I can then use that information as leverage when speaking with her. At this point, we are willing to try any tactics as long as they do not violate the regulations!
Any more suggestions???????[/quote]
I hear this often. It's only clear to you because of assumptions you must be making. In order to be able to lean in either direction on this objectively, we would have to know more about the condition. Just speaking as a matter of my own experience, supervisors always "just know" when someone is "abusing" FMLA and from my position in HR, I often know it's not true or, at least, far less likely than the supervisor insists.
My suggestions are: 1) that you approach this much more neutrally than you are. 2) That you get the facts about the condition. 3) That you review your FMLA policy with counsel to ensure that you have all the tools you are entitled to (e.g., can you in your circuit require her to provide a note from her doctor verifying that the cause of absence is the condition certified? If so, can you do that if it's not in your policy (almost certainly not)? If not, can you have your policy amended appropriately with the aid of counsel?
If the condition is psychological in nature, then this may or may not be abuse but it will be impossible to determine the difference if the employee stays coherent in her story about what's going on and why she's out and you will not be able to do anything about it.
In 2004 (before the latest round of FMLA changes effective this year), the DOL issued an opinion letter on recertifying after a pattern of Monday/Friday absences (see http://www.dol.gov/esa/whd/opinion/FMLA/2004_05_25_2A_FMLA.pdf)
The opinion letter says that "a pattern of Friday/Monday absences can constitute "information that casts doubt upon the employee’s stated reason for the absence" (§825.308(a)(2)), thus allowing an employer to request recertification more frequently than every 30 days." I do not believe that the new FMLA regs change this interpretation . . . so I would recomend a request for recertification, with an attached record of absences for the doctor's review. The new medical certification forms do not allow the doctor to overly generalize about anticipated recurrences, so that is probably your best bet.
TXHRGuy:<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Thanks for your response!!! I know I seem really cynical. I'm really not trying to be but looking at her pattern of absences, I can’t help it! She is on IFMLA for tendonitis. We modified her job duties so she does not do a regular CNA job. Not to bore you to death, but here is a sample of her attendance for one month: Scheduled off Thursday, 1/1; use FMLA on Friday, 1/2; FMLA Friday, 1/9; schedule off on the weekend; FMLA Monday 1/12; Scheduled off Thursday, 1/29; FMLA Friday 1/30. Basically the same pattern for February, March, April, May, June, July, August and September! Her FMLA days ALWAYS precede or follow her scheduled days off and are mostly on a Friday!!! What would you think? With that additional info, what would you do?
Thank you Cally! I reviewed the opinion letter and the regulations but they do not not answer my question which is: If after the doctor's review he states she does need to be off on Fridays/Mondays, but may need to be off occassionally, how do I handle this pattern of absences? Can I discipline her without violating the FMLA?????
Thank you Cally! I reviewed the opinion letter and the regulations but they do not not answer my question which is: If after the doctor's review he states she does need to be off on Fridays/Mondays, but may need to be off occassionally, how do I handle this pattern of absences? Can I discipline her without violating the FMLA????? [/quote]
If the doctor supports her use of FMLA time, then there's nothing left to do. I like the idea of getting her to re-cert, but if her doctor supports it, then getting her to recert all the time could be seen as intimidation (and lead to depression or anxiety claims).
There are policy changes you can make to change the context of intermittent leave to make it less desirable but you'll have to talk to counsel about doing any of that.
[quote user="LR9500"]Our company has a problem keeping up with intermittent FMLA. When they leave a message saying they will be out do we record it as an FMLA absence or should we count it as a pto/vac day? Can we require proof that they were at the drs ofc, therapists, etc? I have looked thru the rules and regs and have not been able to see any definitive answers to these questions. Any other suggestions?[/quote]
Does your absence notification policy say that they have to say why they are out?
Then they aren't violating your absence notification policy. You'll have to call them to find out whether or not their absence is FMLA qualified. At that time, you should simply request that they also call HR after calling their supervisor or, if you trust your supervisor to relay information, request they inform the supervisor if the absence is FMLA related or not.
You could also change the notification policy.
One of the "tips for preventing ifmla fraud" that I have read says to debrief employees when returning to work. Can we question them when they return to work? If they are out sick or take their children to the dr we require a drs note, can we do the same here??
On another note how do I get a copy of the fmla tracking spreadsheet? It would be very helpful.
Can I beg you for a copy of the fmla tracking spreadsheet? Intermittent FMLA is making me want to go out on FMLA...
christina.cottes@academy.com