Employers continue to struggle with intermittent abuse of the Family and Medical Leave Act (FMLA) (http://www.dol.gov/whd/fmla/). A recent federal court case, Crewl v. Port Authority of Allegheny County, highlights some telltale signs of FMLA abuse and provides good examples of what employers may want to consider when facing potential FMLA abuse situations.
The important facts show the typical patterns common in many FMLA abuse cases. First, the employee, Dawn Crewl, had a long history of requesting intermittent FMLA, beginning in 2002 to care for her son. In 2003, and every year thereafter, she requested FMLA leave for her own migraine headaches. In 2006, she began requesting FMLA for depression, anxiety, and panic attacks. Her doctors certified she would have headaches approximately two times per month, and three to four times per week for anxiety conditions. On various occasions, when she was suffering from headaches or panic attacks, she would call in and use FMLA for either the morning shift or the afternoon shift, when she was normally assigned as a bus driver. The first thing that caused the employer to become suspicious of Ms. Crewl’s use of leave was the emergence of a pattern of absences on Fridays and holidays. The employer also noticed that even though Ms. Crewl would call off work, she would report to her second job as a bartender (which the employer captured on surveillance), even on the same days when she exercised FMLA leave.
When faced with this suspicious use of FMLA, the employer requested that Ms. Crewl recertify her need for FMLA leave. The employer also required that Ms. Crewl receive a second opinion for her medical conditions, as permitted by the FMLA regulations. The second opinion doctor concluded that it was suspect that Ms. Crewl missed half of her scheduled days on Fridays as a result of migraines, a sporadic medical condition. The employer also sent letters to Ms. Crewl’s treating doctors, provided copies of her attendance records, and asked them to opine whether the increased frequency of her absences was consistent with her health conditions.
Most importantly, the employer learned that Ms. Crewl had requested vacation for the July 4 holiday but, given her seniority, she was approved only for two vacation days on June 30 and July 1, and was expected to report back to work on July 3. However, while on vacation on July 2, she called in and informed the employer’s bus dispatcher that she would be absent on July 3 and 4, and attributed those absences to FMLA for her approved conditions. Believing that Ms. Crewl’s use of FMLA leave was disingenuous because she could not possibly have known on July 2 that she would need FMLA leave on July 3 and 4, the employer terminated Ms. Crewl’s employment.
Ms. Crewl filed a lawsuit, asserting claims for FMLA interference and retaliation. However, the court dismissed those claims, finding that the employer legitimately enforced its FMLA policy prohibiting fraudulent use of FMLA leave. Particularly noteworthy, the court held that Ms. Crewl’s July 2 request to use FMLA on July 3 and 4, when she should not have known that her sporadic and unpredictable medical conditions would occur, “obliterates any prospect that the leave was for proper FMLA purposes.”
Employers must be very thoughtful and thorough in analyzing FMLA abuse cases. Crewl demonstrates that employers should use the following tools available to help combat FMLA abuse:
In the past few weeks, there have been a number of developments from the NLRB that will impact employers with both unionized and non-union work forces. Here is a brief summary:
If nothing else, given the above developments and the fact we elect a president in 2012, the new year will be an interesting one for NLRB watchers.
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