🔎Your post-Super Bowl guide to spotting employee FMLA or other sick leave abuse🔍

According to a recent survey, 17.5 million American workers may be skipping work today, the day after the Super Bowl. About 6 in 10 of those employees had their Monday absence pre-approved. So, at least you can plan for that.

But, what about the other 6-or-so million?

Survey says…

• 4.7 million employees plan to call in sick even though they are not sick at all; and
• 1.5 million employees will not tell anyone they’re not coming in – they just won’t show up.

That means that a smattering are actually sick or on FMLA.

So, what can your business do when employees miss work today?

Start by pulling out your employee handbook and reminding your managers to enforce the call-out rules. For example, employees who miss work may need to contact a particular person by a particular time using a particular means of communication. If any of those boxes don’t get checked tomorrow, write ’em up! And if an employee ghosts you altogether tomorrow — no-call/no-show — I’ll bet that you have a policy for that too. Follow it.

Now, how about the ones who use the call-out procedures, but you suspect that their sickness is BS. Depending on where you conduct business, you may be hamstrung. Many states and localities have sick leave laws that limit your ability to require a doctor’s note documentation for single-day absences.

FMLA day?

It’s reasonably safe to assume that someone taking a block of continuous leave under the Family and Medical Leave Act, who isn’t due back yet, isn’t abusing that leave today. But, what about someone on intermittent FMLA who misses work? Well, let’s check the rules:

Generally, an employer can only request the employee to provide a recertification no more often than every 30 days and only in connection with an absence by the employee. Plus, if the original FMLA certification indicates that the minimum duration of the serious health condition is more than 30 days, the employer must generally wait until that minimum duration expires before requesting recertification.

But, there are some exceptions to that rule. For example, an employer can request recertification when it receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification. So, today’s absence fits into a pattern of taking three or four-day weekends, consider requesting FMLA recertification.

Here are some additional things to consider before going the recertification route:

• Recertification involves providing notice to the employee. Making an end-run around the employee to the physician can lead to problems. And lawsuits.
• Any recertification requested by the employer is at the employee’s expense unless the employer provides otherwise. No second or third opinion on recertification may be required.
• A pattern of absences means just that, a pattern. If this is the first time that the employee has taken intermittent FMLA on a Monday, that’s not a pattern. Consequently, that’s not your cue to request recertification — unless you like FMLA interference claims.
• Ditto for a slight deviation with the absences contemplated under the FMLA certification that you have on file. The regulations provide an example of what may be a significant change in circumstances (involving an employee certified for leave for one to two days when the employee suffered a migraine headache, and the employee’s absences for his or her last two migraines lasted four days each.) So, if your employee has a similar certification for migraines or fibromyalgia or stress or something else that doesn’t appear on an MRI — am I cynical, or what? — resist the urge to require recertification for a third absence.
• If recertification is not a viable option, it may be unwise to request a doctor’s note.

Congratulations to Andy Reid and the Kansas City Chiefs on winning Super Bowl 54.