Faking Illness to Avoid Shift, Quirky Question # 47

Quirky Question # 47:

Our company uses rotating shifts, one of which starts at 11:00 p.m. and continues through 7:00 a.m.  Every employee is asked to work that shift, one day, every other week.  Every time a particular employee is asked to work that shift, she takes a day of FMLA leave, claiming that she has migraine headaches.  She jokes with her co-workers that she is going to get a migraine each time she is assigned to that shift, and no show up for work.  How should be respond?

Dorsey’s Analysis:

Your question raises an issue similar to the inquiry addressed in our Quirky Question # 41. As you may have read, that QQ involved the unusual situation of an employee routinely stopping at a hotel near his place of employment to help himself to the “free” breakfast and “free” newspaper the hotel provided to its guests. In short, the prior question involved the issue of how an employer should deal with a dishonest employee.

The same basic question is presented here, though in a very different context – how should the employer respond to a dishonest employee who is availing herself of the FMLA leave options by periodically claiming, falsely, that she is ill and needs leave. Compounding the problem, she is boasting to her fellow employees that she is going to continue gaming the system on a regular basis in the future.

Before addressing the specific response warranted by this scenario, let’s review some of the basics. The Family and Medical Leave Act (FMLA) provides for up to 12 weeks of unpaid leave for qualifying employees. A qualifying employee is one who has worked for the employer for at least 12 months and who has worked at least 1250 hours in the preceding 12-month period. (In previous questions, I have addressed the unusual circumstances associated with the fact that the eligible employee did not have to work for 12 consecutive months to be FMLA eligible; see QQ # 7.)

One of the more difficult aspects of administering the FMLA for employers is that the leave taken by employees does not have to be taken continuously. Rather, the leave can be utilized “intermittently.” Given that employees are eligible for 60 days of leave (12 weeks times 5 business days per week) annually, the employee described in the question above would be able to skip the shift she wants to avoid during each of the 26 weeks that she otherwise would be obligated to work that shift (once every other week), and still have 34 days of potential FMLA leave remaining.

Two other fundamental points are worth addressing. First, the employer does not simply have to accept the employee’s request for FMLA leave without obtaining medical corroboration of the underlying need for the leave request. Under the statutory scheme of the FMLA, the employer may insist that the employee provide a certification from a health care provider that she has a qualifying medical condition. Moreover, if the employer is not satisfied with the explanation provided by the employee, the employer may insist that the employee visit another medical provider (at the employer’s expense) for a second opinion. If the two medical assessments are in conflict, the employer may insist upon a third opinion (again at its expense) to be provided by a medical provider agreed upon by the first two medical practitioners who provided opinions.

Second, in general, “migraine headaches” may (or may not) qualify as a “serious health condition” under the statute, sufficient to provide employees a right to take FMLA leave. Again, this determination will likely depend on various medical considerations – e.g., how frequently does the employee get the headaches, how severe are the headaches, how incapacitated is the employee because of the headaches, how long has the employee experienced the headaches, is the employee utilizing prescription or non-prescription medications that adequately address the physical problems associated with the headaches. Presumably, these and similar inquiries are the types of questions that will be explored in the medical examinations.

Turning then to the specific factual scenario described above, you have several options. One option is to simply allow the employee to take the leave she requests once every other week. In my view, however, this is a bad idea. First, presumably, you will need to get some other employee to work the shift that the employee is skipping. If that employee already has worked 40 hours that week, you will have to pay the replacement employee overtime compensation for the skipped shift. Simply put, even though you don’t have to pay the employee taking the leave for the shift she misses, her decision to skip one shift every other week could cost your firm money.

Second, the other employees (many of whom also may be unenthused about working this late-night shift) may resent the fact that their co-worker is skipping the shift and that the company is tolerating her regular absences. Other employees may perceive this situation as unfair and they would be correct.

Third, given that the employee is boasting to her co-workers that she is going to miss the shift every other week, for what she concedes is a pretextual reason, accepting this conduct by her has two adverse consequences. It could exacerbate the resentment other employees feel toward the employee and the company. And, it sends the wrong message to the workforce. Allowing the employee to take the leave basically communicates to this employee and the rest of the workforce that she can abuse the company’s leave rules (as well as misuse the legitimate benefits of the FMLA), without consequence. If this approach were utilized by the company, you should not be surprised if other employees also decide that they would like to take some time off, either intermittently or on a more protracted, consecutive-day or consecutive-week basis.

Another option then would be to confront the employee about her request for leave and her statements that she is going to get a well-timed migraine headache every time she is asked to work the late shift. Assuming you corroborate the fact that the statement was made (either by speaking with a sufficient number of other employees or by obtaining an admission from the employee that she made this statement), you simply could deny her request for FMLA leave. The corollary question you should assess is whether you also want to discipline the employee for making a fraudulent request for leave. If you conclude that the employee is dishonest, and you have a legitimate aversion to employing dishonest employees, discharge her. If you conclude that this penalty is unduly harsh, you could consider utilizing a “last chance” warning or explaining to the employee that any further acts of dishonesty will result in her termination.

A third option you may wish to consider would be to rely on the mechanisms provided in the FMLA to address this situation. For example, if other employees did not provide clear corroboration of the employee’s statements and the employee herself denied making them, you could sit tight until she requested leave. Once the request was made, you could avail yourself of your right to seek a medical opinion regarding the employee’s condition. Taking advantage of the FMLA procedures could have a couple of benefits. First, you will get some independent insights into whether a health care practitioner will rubber-stamp the employee’s leave request. Second, if the employee’s health care professional validates the employee’s “need” for the leave, you will have gained an insight into that individual’s objectivity and veracity. Third, I would expect that your own physician will point out that migraine headaches do not arrive on schedule at 6:00 p.m. (an hour before a 7:00 p.m. shift, every other week). Presumably, this health care professional will support the company’s rejection of the leave request. As described above, if there is a conflict in the opinions of the two health care practitioners, you could demand a third opinion. Of course, the biggest downside to this approach is the attendant cost.

The bottom line is that your company should not honor your employee’s request for intermittent leave every other week for “migraine headaches.” If your employee makes the imprudent decision to litigate this issue, you should prevail.

Supplement to Analysis of QQ # 47

On July 14, I posted QQ # 47, a situation presented to us by one of our clients involving an employee who advised her co-workers that she “planned” to get migraine headaches every time she was asked to work a particular late-night shift. On July 21, I posted my analysis of that question.

On July 23, 2008, I saw a report of a decision from the Seventh Circuit, Vail v. Raybestos Prods. Co., No. 07-3621 (7th Cir. July 21, 2008), involving an employee who was terminated by her employer for abusing the intermittent leave provisions of the Family and Medical Leave Act (FMLA). Coincidentally, the employee had been fired for periodically claiming that she needed leave because of her unexpected “migraine headaches.

Although the employer previously had agreed to allow the employee to take FMLA leave as a result of her migraine headaches, it became suspicious of the employee because of the timing of the requests for leave. The employer retained a private investigator to learn what activities she engaged in during the time she was too ill to work and discovered that during these periods of ‘incapacity,’ she was cutting lawns for her husband’s lawn service business. Based on this information, the employer terminated her employment.

The employee sued her employer for interfering with her rights under the FMLA. The District Court granted summary judgment to the employer and the 7th Circuit affirmed. The appellate court pointed out that the employee must demonstrate that she took the leave “for the intended purpose of the leave,” 29 U.S.C. § 2614(a)(1), and that the employer can defeat a FMLA claim by showing that the employee did not take leave for the “intended purpose.”

The Court noted that an employer is under no obligation to reinstate an employee returning from FMLA leave if the refusal is based on the “honest suspicion” that the employee was abusing the leave. Persuaded that the employer had an “honest suspicion” that the employee was abusing the leave (as reflected by the timing of the leave requests and the lawn cutting work in which she then engaged), the Court found that the Raybestos had not violated its employee’s FMLA rights by ending her employment.

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