Before I get into that new CDC mask guidance, I owe you two more tips to avoid FMLA abuse

On Monday, I’ll give you a thorough breakdown of yesterday’s CDC guidance for fully vaccinated individuals, including some initial thoughts on how to revise return-to-work/COVID-19 workplace policies.

But now I want to pick up where I left off yesterday with two more tips to combat Family and Medical Leave Act abuse.

Here’s the premise: Employee gets approved for intermittent FMLA leave but subsequently accrues too many non-FMLA-related attendance points. Employee claims that the employer was on notice of her need for FMLA leave and denied her benefits to which she was entitled under the FMLA. But, the company says otherwise.

Yesterday, we focused on what happens when the employee either fails to follow the employer’s call-out rules or doesn’t otherwise notify the employer that her absences are FMLA-related.

Leave beyond what the doctor certified.

What happens if the employee takes more leave than what appears on an FMLA certification?

For example, in the case we discussed yesterday, the plaintiff’s doctor certified (and the defendant approved) up to two full days and two half days of intermittent FMLA leave per month, based on the FMLA certification. Over the next 30 days, the plaintiff slightly exceeded her leave allotment, so the defendant assessed attendance points for the overage.

Now, you may be thinking that this seems a little unfair. However, the court noted that the plaintiff consistently requested FMLA leave beyond the days her doctor certified yet never attempted to increase the amount of intermittent FMLA that the defendant had approved. To its credit, the defendant sent the plaintiff’s doctor a new FMLA form asking him to recertify the frequency and duration of the plaintiff’s condition so it could determine whether she needed additional leave. But, the doctor merely directed the company to “Refer to prior FMLA form.”

Because the plaintiff undoubtedly exceeded her leave allotment, the defendant could assess attendance points.

Leave for unrelated reasons.

If an employee on FMLA leave misses work for medical reasons unrelated to the serious health condition on the medical certification, the employer can discipline the employee.

The plaintiff missed work the entire week of July 11-15, 2016, due to her knee “giving out.” During a July 11 appointment, her doctor observed lingering mouth sores and anemia but no other symptoms of reactive arthritis, including joint pain. He noted no issue with her knee. So, when the plaintiff sought to use FMLA leave for her knee paid, the defendant rightfully denied it, deeming her knee issue unrelated to the symptoms for which she was FMLA-certified, and assessed her attendance points instead. Indeed, the plaintiff’s orthopedic specialist, who examined her later, opined that her knee injury was not related to reactive arthritis.

So, there you have it: three tips to combat FMLA abuse. What other ways have you succeeded in controlling FMLA abuse? Please email me and let me know.