248-409-1900 dburke@mi-worklaw.com

By:  Rhonda Armstrong – 9/25/14

        Welcome to the “Friday Monday Leave Act,” otherwise known as the Family Medical Leave Act (FMLA). The FMLA generally applies to private sector employers with 50 or more employees in a 75 mile radius and most public employer. It provides eligible employees (those with 12 months of service with their employer who worked 1250 hours in the 12 months leading up to the leave) with up to 12 weeks (26 weeks in some cases) of unpaid leave for certain statutory events, like serious health conditions of the employee or employee’s family member. While the FMLA is now more than 20 years old, as a management-side labor and employment attorney, I find that many employers still do not fully understand it and are constantly challenged in handling what is referred to as unforeseeable intermittent or reduced schedule leave (in large part because employees have learned how to work and abuse the system).

        What is intermittent or reduced schedule leave?

        Under the FMLA, employees may take protected leave on a continuous basis (e.g., a new mother taking 12 weeks after the birth of her child), on an intermittent basis (e.g., a few hours per week) or on a reduced schedule basis (e.g., part-time work). The need for leave can be based upon a foreseeable event like when an employee is pregnant and will need time off for childbirth and for the immediate period thereafter But, FMLA leave can also be used when the event is unforeseeable, like when an employee is injured. It is this unforeseeable leave which can be so easily abused by employees and, therefore, the source of employer frustration and mistakes. Thanks to the Friday Monday Leave Act, an employee can technically call off work Friday and Monday and enjoy the benefit of three or four-day weekends by asserting a variety of ailments that can qualify as a serious health condition under the FMLA. Migraines, depression, and chronic fatigue syndrome are just a few examples of conditions that can qualify an employee for intermittent or reduced schedule leave. Needless to say, this raises employer suspicions, is trying for supervisors, and causes coworker discontent.

         What is an employer to do?

         There are avenues an employer can pursue if it believes an employee is working the system. These include:

  • Follow the FMLA medical certification, second opinion, or tie-breaker process. Pursuant to the FMLA, employers have the right to request medical certification when leave is used for a serious health condition of the employee or employee’s family member. An employer also has a right to request a second opinion when it has reason to doubt the certification. If there is a conflict, the employer may require a third opinion. Because the employers are responsible for the costs associated with second and third opinions and because the process takes so long, the second opinion/tie breaker avenue is seldom used and generally ineffective in the case of intermittent leave cases. However, when things just do not add up, this can be a useful tool for employers The medical certification process is worth utilizing in most cases though.
  • Enforce the Company’s absence reporting policy, absent unusual circumstances. In 2009, the FMLA regulations were revised to expressly permit employers to condition FMLA-protected leave on an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. Therefore, if an employee no call/no shows, and you consistently terminate employees for similar infractions, you are within your right to discipline and even terminate the employee absent evidence of inconsistent enforcement or unusual circumstances (g., the employee was unconscious and unable to call).
  • Have good systems in place to document employee call-ins, reasons for absences, and time-off taken. While this may seem obvious, it is important to have systems in place documenting all employee absences and the reason for the absences. I recently assisted an employer that simply wrote FMLA every time an employee called in, but there was no other evidence that the employer could rely upon to show why – absences were treated as FMLA versus non-FMLA time-off. This can be problematic in demonstrating whether an employee has exhausted FMLA leave and/or is entitled to additional leave.
  • Follow the FMLA designation procedures. Pursuant to the FMLA regulations, employers are required to designate time-off as FMLA-qualifying (it is recommended that employers use the DOL form WH-382). Generally, employers must notify the employee in writing that the leave has been designated as FMLA qualifying and of the number of hours/days/weeks counted as FMLA within five business days absent extenuating circumstances. When intermittent leave is predictable, only one designation notice is required. However, this is rarely the case. More often, employees call in sporadically and their usage is unforeseeable. In such cases, an employer must then provide the notice upon request by the employee but not more than once in a 30-day period and only if the leave was taken during that period.
  • Consider hiring a private investigator. This is one of our favorites. There is no better way than to curb abuse than to obtain video of an employee, who called off on Friday due to a migraine, only to be videotaped water skiing. The Sixth Circuit (the court with jurisdiction over Michigan) has endorsed this practice where the employer has a reasonable bases to expect abuse. Tillman v. Ohio Bell Tel. Co., 545 Fed. Appx. 340 (6th 2013).  The Sixth Circuit rejected an FMLA claim when the employer s terminated an employee who was videotaped shopping, driving and working in his garage although he had called off for a back problem. The Court determined that the employer was justified in conducting the surveillance because the employee had routinely used intermittent leave on weekends and days adjacent to scheduled days off. In Michigan, however, surveillance should be performed by a reputable company and only during the employee’s normal work hours to avoid invasion of privacy and trespass-related claims.

         Handling these situations can be a huge headache for employers. If faced with such circumstances, employers should be on high alert that any discipline or discharge decision may end up being scrutinized by a judge or jury (and or that the employee may already be consulting with an attorney). While I have outlined the above recommendations, it is wise to involve legal counsel at the early stages so that you can increase the probability of successfully defending your actions.

         Welcome to the “Friday Monday Leave Act,” otherwise known as the Family Medical Leave Act (FMLA). The FMLA generally applies to private sector employers with 50 or more employees in a 75 mile radius and most public employer. It provides eligible employees (those with 12 months of service with their employer who worked 1250 hours in the 12 months leading up to the leave) with up to 12 weeks (26 weeks in some cases) of unpaid leave for certain statutory events, like serious health conditions of the employee or employee’s family member. While the FMLA is now more than 20 years old, as a management-side labor and employment attorney, I find that many employers still do not fully understand it and are constantly challenged in handling what is referred to as unforeseeable intermittent or reduced schedule leave (in large part because employees have learned how to work and abuse the system).

        What is intermittent or reduced schedule leave?

        Under the FMLA, employees may take protected leave on a continuous basis (e.g., a new mother taking 12 weeks after the birth of her child), on an intermittent basis (e.g., a few hours per week) or on a reduced schedule basis (e.g., part-time work). The need for leave can be based upon a foreseeable event like when an employee is pregnant and will need time off for childbirth and for the immediate period thereafter But, FMLA leave can also be used when the event is unforeseeable, like when an employee is injured. It is this unforeseeable leave which can be so easily abused by employees and, therefore, the source of employer frustration and mistakes. Thanks to the Friday Monday Leave Act,, an employee can technically call off work Friday and Monday and enjoy the benefit of three- or four-day weekends by asserting a variety of ailments that can qualify as a serious health consition under the FMLA.. Migraines, depression, and chronic fatigue syndrome are just a few examples of conditions that can qualify an employee for intermittent or reduced schedule leave. Needless to say, this raises employer suspicions, is trying for supervisors, and causes coworker discontent.

        What is an employer to do?

        There are avenues an employer can pursue if it believes an employee is working the system. These include:

  • Follow the FMLA medical certification, second opinion, or tie-breaker process. Pursuant to the FMLA, employers have the right to request medical certification when leave is used for a serious health condition of the employee or employee’s family member. An employer also has a right to request a second opinion when it has reason to doubt the certification. If there is a conflict, the employer may require a third opinion. Because the employers are responsible for the costs associated with second and third opinions and because the process takes so long, the second opinion/tie breaker avenue is seldom used and generally ineffective in the case of intermittent leave cases. However, when things just do not add up, this can be a useful tool for employers The medical certification process is worth utilizing in most cases though.
  • Enforce the Company’s absence reporting policy, absent unusual circumstances. In 2009, the FMLA regulations were revised to expressly permit employers to condition FMLA-protected leave on an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances. Therefore, if an employee no call/no shows, and you consistently terminate employees for similar infractions, you are within your right to discipline and even terminate the employee absent evidence of inconsistent enforcement or unusual circumstances (g., the employee was unconscious and unable to call).
  • Have good systems in place to document employee call-ins, reasons for absences, and time-off taken. While this may seem obvious, it is important to have systems in place documenting all employee absences and the reason for the absences. I recently assisted an employer that simply wrote FMLA every time an employee called in, but there was no other evidence that the employer could rely upon to show why – absences were treated as FMLA versus non-FMLA time-off. This can be problematic in demonstrating whether an employee has exhausted FMLA leave and/or is entitled to additional leave.
  • Follow the FMLA designation procedures. Pursuant to the FMLA regulations, employers are required to designate time-off as FMLA-qualifying (it is recommended that employers use the DOL form WH-382). Generally, employers must notify the employee in writing that the leave has been designated as FMLA qualifying and of the number of hours/days/weeks counted as FMLA within five business days absent extenuating circumstances. When intermittent leave is predictable, only one designation notice is required. However, this is rarely the case. More often, employees call in sporadically and their usage is unforeseeable. In such cases, an employer must then provide the notice upon request by the employee but not more than once in a 30-day period and only if the leave was taken during that period.
  • Consider hiring a private investigator. This is one of our favorites. There is no better way than to curb abuse than to obtain video of an employee, who called off on Friday due to a migraine, only to be videotaped water skiing. The Sixth Circuit (the court with jurisdiction over Michigan) has endorsed this practice where the employer has a reasonable bases to expect abuse. Tillman v. Ohio Bell Tel. Co., 545 Fed. Appx. 340 (6th 2013).  The Sixth Circuit rejected an FMLA claim when the employer s terminated an employee who was videotaped shopping, driving and working in his garage although he had called off for a back problem. The Court determined that the employer was justified in conducting the surveillance because the employee had routinely used intermittent leave on weekends and days adjacent to scheduled days off. In Michigan, however, surveillance should be performed by a reputable company and only during the employee’s normal work hours to avoid invasion of privacy and trespass-related claims.

        Handling these situations can be a huge headache for employers. If faced with such circumstances, employers should be on high alert that any discipline or discharge decision may end up being scrutinized by a judge or jury (and or that the employee may already be consulting with an attorney). While I have outlined the above recommendations, it is wise to involve legal counsel at the early stages so that you can increase the probability of successfully defending your actions.