You don’t have a gun. You don’t have a badge. Don’t be the FMLA police!

42nd St, 11 Mar 09

You know, it’s one thing to communicate with employees on FMLA to express concern for their well-being or determine whether they plan to return to work as scheduled.

But, when you turn into the FMLA Police, that’s when problems ensue.

[cue music]

Don’t do this.

Consider this recent Eleventh Circuit decision in Diamond v. Hospice of Florida Keys, Inc. Ms. Diamond was a licensed clinical social worker who took a series of unforeseen FMLA-protected leaves to care for her ill mother. Shortly thereafter, the Hospice notified Ms. Diamond that her continued absences were affecting her job performance. I believe the exact words were, “Your continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.”

Then, the following month, the Hospice fired Ms. Diamond. But, wait. There’s more.

In addition, the record included “other evidence of discouragement, including, most notably, Hospice’s requests for ‘proof of need’ in the form of gas and travel receipts.” And, here I thought that they had these things called FMLA certification forms.

But, hold up now! Can I start advising clients to demand EZ-Pass records and Slurpee receipts from the 7-11 down the block to prove that an employee’s “FMLA leave” from work was actually to care for mom?  Ummmmm….no!

Break it down for ’em, 11th Circuit:

The FMLA allows an employer to “require that an employee’s leave to care for the employee’s covered family member with a serious health condition . . . be supported by a certification issued by the health care provider of the employee or the employee’s family member.”

… 

Here, though…the kinds of documentation Hospice requested have no necessary relation to Diamond’s need for leave or, assuming Hospice had some reason to doubt the timeliness of Diamond’s notice, whether she could have provided notice earlier. For example, “food receipts in the city where your parents reside” say nothing about whether Diamond’s mother had an FMLA-qualifying condition, but they do say where Diamond was. Thus, Hospice appears to have been attempting to verify whether Diamond was being truthful about caring for her parents.

It also didn’t help matters that Hospice lacked a leave-notification policy or procedure for employees who needed FMLA. You see (get ready to do this)…

Hospice’s purported documentation policy applied solely to unforeseeable FMLA leave, not leave requests generally. Additionally, when Diamond requested the HR document outlining this policy, Chennault simply referred her to the FMLA regulations, which suggests that Hospice’s policy may have been ad hoc. These facts could support an inference that Hospice, knowing it could not deny Diamond’s leave requests outright, sought to discourage her from taking FMLA leave by making approval of her leave requests more difficult.

So, Ms. Diamond may have an FMLA interference claim after all. Plus, there’s that firing within weeks after she was warned about her unpaid leave compromising quality of care. That suggests a possible retaliatory motive.

Do this instead.

  1. Have a clearly articulated FMLA policy, which includes procedures for requesting leave when foreseen or unforeseen.
  2. Have the employee complete an FMLA certification to support the need for leave. But, don’t go overboard with the receipts and that mish-mosh.
  3. If you suspect FMLA abuse, I got your back.
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