Using FMLA to Cover Drinking

Question:

We have one employee who takes intermittent Family Medical Leave. We suspect her of using the guise of FMLA leave to cover alcohol abuse and extended weekends, as she’s absent two to three Mondays a month. Prior to her FMLA, she claimed occasional sick days on Mondays. Other employees have noticed her leaving early Friday as well.

With this fact pattern and given the rumors now circulating, may we start asking her to bring doctor’s notes each week to justify her need for Monday leave?

Answer:

While a Monday absence pattern may indicate alcoholism, you can wind up in legal hot water if you ask for weekly doctor’s notes from an employee using intermittent Family Medical Leave. In a recent case, Oak Harbor Freight Lines v. Antti, the employer suspected that employee Antti used FMLA leave to cover weekend drinking. Ninety-four percent of Antti’s absences fell on Mondays, Fridays or days adjacent to holidays.

They asked Antti to bring weekly doctor’s notes and he sued, claiming an FMLA violation. The U.S. District Court ruled in Antti’s favor, noting that once an employer receives the “complete and sufficient” medical certification needed to qualify for FMLA certification, it may not request additional information from the health care provider unless it requests a recertification.

Recertification requests can’t be made weekly and need to be made on a “reasonable” basis, “no more than once every thirty days” and only in connection with an employee’s absence. You can find these regulations at http://www.dol.gov/whd/regs/compliance.

Here’s what you can do: If it’s been more than 30 days since the original certification, you can ask for recertification and furnish the physician the leave pattern. Your employee’s physician may read the situation as you do and help the employee fix the real problem.

© Dr. Lynne Curry is author of ”Beating the Workplace Bully” and ”Solutions” as well as owner of the management/HR consulting/training firm The Growth Company Inc. Follow her on Twitter @lynnecury10 or at www.bullywhisperer.com.

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