Family and Medical Leave Act (FMLA)

Texas Lawyer — Behind Enemy Lines: Employee-Side Lawyer Tactics

Texas Lawyer — Behind Enemy Lines: Employee-Side Lawyer Tactics

Texas Lawyer has signed up Alan Bush as a freelance contributor.  His latest article, "Behind Enemy Lines: Employee-Side Lawyer Tactics," appeared on May 14 in the In-House Texas pullout.

Here's what Alan had to say about how he stays one step ahead of employee-side opposing counsel:

Trust But Verify

Authorities in Pennsylvania believe a teacher played hooky by faking an inoperable brain tumor.  She fooled the system for over 10 years—even asking for 8 weeks off to get chemotherapy.  But the teacher didn't have any of a brain tumor's normal symptoms, so the school district finally got suspicious.  The district called the doctor whose name was on the teacher's sick notes, and he said he'd never treated her.  AOL news broke the story.

Link to full story.

Chances are the teacher claimed FMLA leave to cover her 8-week absence for chemotherapy.  Under the FMLA, covered employees may take up to 12 weeks of unpaid time off to care for a "serious health condition."  The FMLA lets you implement written policies to police abuses of family and medical leave.

Do you require medical certification that your employee's or his relative's condition qualifies for FMLA leave before fully approving the leave?  Are you checking back in with your folks every 30 days or so to have the medical condition recertified?  How about having HR contact the treating physician if a certification smells fishy?

An employee who abuses FMLA leave may be the suing type.  If he sues you, you might use the medical certifications to build your case.  Let's say you can prove dead-to-rights that the employee forged a medical certification.  That's a legitimate basis for firing him.  Even if you discover the forgery after firing the employee, it can still cut off his lost wages claim from the day you discover the fraud.  Either way, your diligence on monitoring FMLA leave just saved you.