Possible Abuse of Intermittant FMLA
HomeHope
1 Post
We have an employee who has a history of attendance issues. After recieving her final warning for absences and tardiness, she applied for intermittant FMLA with her Doctor's approval for her asthma. Since then, she has been tardy several times a month (1/2 hour - 1 hour late) and always claims it was because of her asthma. It seems the IFMLA has become her "get out of jail free card". The owner of the company would like to fire her, but her job is now protected. And 12 weeks at 1 hour at a time will never run out. What measures can we take to discourage abuse of intermittant FMLA?
Comments
We have an employee who has a history of attendance issues. After recieving her final warning for absences and tardiness, she applied for intermittant FMLA with her Doctor's approval for her asthma. Since then, she has been tardy several times a month (1/2 hour - 1 hour late) and always claims it was because of her asthma. It seems the IFMLA has become her "get out of jail free card". The owner of the company would like to fire her, but her job is now protected. And 12 weeks at 1 hour at a time will never run out. What measures can we take to discourage abuse of intermittant FMLA?
[/quote]
There's not much you can do. You can challenge the certification, at the Company's expense. However, if the Company doctor disagrees with the employee's doctor, you will have to pick a third doctor by mutual agreement, again at the Company's expense, and that person's decision will be final. Alternatively, you can investigate her for fraud, and I strongly advise you to do that through an established HR investigation firm if you do, which will also be expensive but if she's caught lounging around or doing yard work before coming in to work, you'll know what to do. Companies that investigate WC fraud also now generally do FMLA fraud as well.
Playing devils' advocate, I notice that there's always a jump among some managers to assume that a sick person isn't actually sick because of how inconvenient it is to the manager. What if she has morning asthma bouts that are really that bad and that unpredictable? I'm not saying it's not a pain but I am saying that it's expensive to question her doctor's authority and it can also end up creating a whole lot of negative feeling from the employee and all the employee's friends toward the Company. Let's say that her asthma is burdensome to her and perhaps even embarassing. In that case, all those times she said it was traffic or car trouble or child care issues it may have been asthma.
In my opinion, you should use an investigation firm if you are really convinced that she's faking or you should get over it and let life go on. Everything in the middle is potentially on the road to retaliation claims.
Just out of curiosity, what did she say
What did the doctor state in regards to the duration and frequency of episodes of incapacity? Is she exceeding this or did the doctor state that she might be tardy several times a month? Are you requiring recertification every 30 days? Also, I would inform the doctor how many times a month she is late to work.