FMLA - Out Drinking
dkay
3 Posts
Is there anything in the FMLA guidelines that would cover an employee who is unable to send a child to school or leave the child alone in order to come to work but has been seen numerous time out drinking at the local bars and has made statements to peers that the child was fine but they weren't going to come into work because they were sick from the drinking binge? They are using FMLA time granted to get over hangovers instead of taking care of the child.
Comments
Take a look at the FMLA regualtion, 29CFR825.114 that defines what consitutes a serious health condition entitling the employee a leave to care for a child (or parent or spouse)
The link is
[url]http://www.access.gpo.gov/nara/cfr/waisidx_02/29cfr825_02.html[/url]
Scroll down to .114.
The FMLA regulation,.116(a) provides the following regarding care for a child under FMLA:
"The medical certification provision that an employee is "needed to care for" a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care."
It becomes clear that the employee may not be needed every second of every minute to provide such care. Is your concern that he is socializing or is it the statements apparently saying that his child is okay?
Take a look also at 825.306(b)(5).
If you do have a medical certification on the child but you question its adequacy, you may are able to require a second medical opinion from a doctor of the your choosing which you pay for. Take a look at 825.307.
The issue here is on what basis you are questioning the original doctor's statement. Do you have some evidence that you can rely on (perhaps affidavit's from the employee's co-workers relating his statements you mention) to show that the original doctor's statement is not accurate? Have you confronted th employee and asked for an explanation of what you understand he has told his co-workers? Check that out before you require a second opinion.
If this employee were going to church every day to fervently pray for a few hours that his child got better, would you be raising the same question?