Use and Abuse of the Family and Medical Leave Act: What Workers and Employers Say

Contents
Introduction
Chapter 1: Vague Definition of a Serious Health Condition
Chapter 2: FMLA Leave Used to Excuse Tardiness
Chapter 3: FMLA Used to Avoid Undesirable Work
Chapter 4: Suspicious Leave Patterns
Chapter 5: Openly Abusive Leave
Chapter 6: Coworkers Must Pick Up the Slack
Chapter 7: FMLA Misuse Disrupts Operations and Hurts Customers
Chapter 8: Bonus and Rewards Programs Cut
Chapter 9: Difficult to Communicate with Doctors
Chapter 10: Certification Form Confusing
Chapter 11: Administrative Burden of FMLA
Conclusion

Introduction

Requiring employers to provide employees with unpaid leave when they or a family member have a serious medical condition appears both compassionate and commonsense. Parents should not have to fear losing their job when caring for their child during a life-threatening illness, and they would hardly be productive if they were working. To help workers "balance the demands of the workplace with the needs of families," Congress passed the Family and Medical Leave Act (FMLA) in 1993.[1]

The act requires companies with more than 50 workers to provide eligible employees with up to 12 weeks of unpaid leave a year when they or an immediate family member have a serious health condition, or after the birth or adoption of a child. Employers must reinstate the worker at the end of the leave, and may not discipline or fire employees taking FMLA leave.

On paper these requirements seem sensible, and the act has helped many families in difficult times. However, the consequences of legislation rarely are limited to their intended effects. The Family and Medical Leave Act is no exception. The act—and especially the regulations implementing it—has been misused by some employees to shirk their responsibilities at work. These employees have used the act in ways that harm their coworkers, customers, and employers.

Because companies cannot punish workers for taking leave under the FMLA, irresponsible employees have found they can use the act to skip work without consequences. They have claimed FMLA leave to avoid undesirable shifts or to excuse unannounced absences or tardiness. In other cases, employees take FMLA leave for ailments that are far from "serious medical conditions." When this happens, their work is often dumped on coworkers or left undone. This is not what Congress intended.

On December 1, 2006, the Department of Labor's Employment Standards Administration/Wage and Hour Division undertook a review of the Family and Medical Leave Act. Part of this review included a Request for Information that invited the public to provide information about their experience with the Act and comment on its effectiveness. These comments are now publicly available at the Department of Labor. This report draws on these public comments to document how the act has been abused and has fallen short of Congress's original intentions. In particular:

The definition of a "serious medical condition" is so vague that employees can take FMLA leave for almost any reason.
Irresponsible employees use FMLA leave to avoid discipline for arriving late to work.
Other workers use the leave to avoid working undesirable shifts.
FMLA leave use increases on Mondays and Fridays, and on days when vacation requests were denied.
Some employees openly boast that they use FMLA leave to take off work at will and without consequences.
When workers misuse FMLA leave to take unannounced vacations, coworkers must pick up the slack, forcing them to work extra shifts or mandatory overtime.
This abuse of leave hurts employee morale and teamwork in the workforce.
Misuse of FMLA leave severely disrupts business operations. In the cases of public safety workers, such those in intensive care units or 911 dispatching centers, it endangers the public.
Many companies have ended their attendance rewards programs because the act forced them to treat employees who misused FMLA leave as having perfect attendance.
The act makes it very difficult for employers to communicate with doctors to find out how incapacitating their employees' illnesses are, or what alternative work they could perform.
The certification forms are vague and confusing and poorly understood by both doctors and employers.
The record keeping and paperwork required by the act are heavy and expensive burdens on employers.

Congress should pass legislation to correct such abuses and restore the act to its original purpose. Changes could include allowing employers to require workers to take leave in half-day increments and to count FMLA leave against attendance bonus policies. Congress also should make it easier for employers to verify the seriousness of an employee's condition and strictly define a "serious medical condition" so that routine conditions such as a cold or stress are not used to justify leave.

Experience with the FMLA shows that laws can have significant unintended consequences, even when they are passed with the best of intentions. Congress should take this lesson to heart when considering similar laws.

The following compilation of examples from the Department of Labor's Request for Information offers insight into the effects that the FMLA truly has.[2]

Chapter 1

Vague Definition of a Serious Health Condition

The Family and Medical Leave Act allows employees to take leave for "serious medical conditions." However, the act provides doctors with little guidance about what qualifies for leave under the act.

Irresponsible employees thus look for doctors who will certify them as having "serious medical conditions" even when they could continue working without difficulty. Workers have had routine conditions like colds, stress, or even an injured toe certified as serious medical conditions. Some workers take additional days off work so that their condition will meet the qualification for "serious."

Congress intended the FMLA to provide relief to workers with real health problems—not as a get out of jail free card for employees to evade their obligations at work. Congress should consider the problems that the vague definition of "serious medical condition" has created in the workforce.

Kevin McCarthy from the Kalamazoo Human Resource Management Association explains how undefined periods of leave can create problems for employers. "Many certifications for intermittent leave list the period of the need for the leave as 'indefinite' or 'permanent.' In such situations, the employee will never have to ask for an extension of the intermittent leave. Unless the employer receives good information that the individual's medical circumstances have changed significantly or that the need for an intermittent leave is no longer valid, the employee will never have to submit a recertification. In the types of abusive situations discussed above, this is a major problem. Placing a limit on the length of time a medical certification is valid, such as 90 days, would be very helpful in assisting employers to deal with this abuse."[3]
Sue Sumler from the Manufacturers' Alliance/MAPI explains the problems caused by a vague definition of serious health condition. "Because the definition of a 'Serious Health Condition' is vague, almost anyone can find a physician to certify that they have a chronic condition that meets the definition. Many of this company's intermittent leaves are for migraine headaches. The physician certifies that migraines may occur at any time. Some employees approved for leave for migraine headaches miss four-five days a month and more. For some, it appears that FMLA has given them an extra 60 days off work."[4]
Rae Vann, writing on behalf of the Equal Employment Advisory Council, cites examples of abuses from the lenient definition of serious health condition. "One EEAC member company informed us that some employees have boasted about staying home for three days or more, seeing a doctor or other health care provider, and convincing the provider to give them a prescription so that the time off is protected under the FMLA. Other employees at the company who were out sick for legitimate reasons later confessed that they stayed out of work for an additional day or two so their sickness could qualify as a serious health condition."[5]
James Sherman from Wessels & Pautsch, P.C. explains how unclear FMLA is concerning what qualifies as a serious health condition. "[A]n individual had a bad cold. Normally that would not be considered an FMLA-qualifying serious illness. However, the person was seen in the clinic twice, and the Certification of Health Care Provider had wording that indicated it was a 'more severe' situation. Our impression is that the wording of what constitutes a serious health condition opens the door to an employee seeking treatment that may not have been necessary so as to have their absence 'covered' and therefore not subject to disciplinary action if the person violates a formal attendance policy. We've also seen situations where it's been pretty obvious that the person knows the 'system' well and uses it to get what I like to refer to as a 'free ride' in respect to a company's expectations of attendance.

This is another example from a company represented by Wessels & Pautsch, P.C.: "Our concern with FMLA would be that employees with migraines or fibromyalgia…are classified as having a serious medical condition if they go to the doctor a couple of times and are on a regimen of treatment which is prescription drugs. Their doctor completes FMLA forms and the employee takes A LOT of time off and we can't touch here. Then we have to go through the employee to ask if this time is excessive. We had the employee take a list of the dates the employee was absent which included a lot of Mondays and days following holidays and the doctor said that this was normal for her condition. With having 60 days, the employee can take a day or more a week and still be within the guidelines. Then other co-workers have to pick up the slack and do not understand why management does nothing about her excessive absenteeism. This is VERY frustrating and not what I think FMLA was intended for."[6]
Tamara Domeyer from Exelon Business Services, speaking on behalf of their represented companies about the vague definition of a serious health condition, submitted the following comments about FMLA. "Exelon receives an overwhelming number of certifications for employees who have migraines and all of whom work in the same department. The providers report no objective clinical basis for determining that the employees have serious health conditions that incapacitate them from working but rely, instead, on the employees' subjective complaints of pain, blurred vision, light sensitivity, and nausea. The providers report that the employees take both preventative medication to prevent a migraine from occurring and medication at the onset of a migraine to reduce the duration of a migraine. Yet, the employees' health care providers consistently report that, when the employees have a migraine, the employees will be incapacitated from one to three days. Coincidentally, bargaining unit employees in this particular area of the company are eligible to receive paid disability benefits for absences of three scheduled working days or less due to illness without providing any medical documentation to support the absences. Some providers report that episodes of incapacity may occur once a month; even more providers report that episodes of incapacity may occur two to three times a month (for a total of six to nine working days). Exelon receives similar information from providers regarding employees with asthma, hypertension, degenerative disc disease, and arthritis. Employees covered by these certifications are taking medication for their conditions or receiving treatments of some sort (such as cortisone injections or physical therapy) but, according to their providers, these employees still have long-term recurring episodes of incapacity lasting one to three days, occurring anywhere from one to three times a month (up to seven times a month, in some cases)."[7]
Tricia Miller from Bendix Commercial Vehicle System LLC explains the need for a better definition of "serious health condition." "I have had difficulty interpreting and applying the DOL's expansive definition of 'serious health condition.' For example, in 1995, the DOL issued an opinion letter stating that if an employee had been sick for more than three days, the employee would not qualify for FMLA protection if the employee was merely suffering from a common cold without complications. However, in 1996, the DOL issued a new opinion letter stating that employees who were ill with a common cold or the flu would be entitled to FMLA protection, provided the employee met the test set forth at 29 C.F.R. section 825.114. If the DOL would define 'serious health condition' more clearly, HR professionals would not have to debate whether the flu, the common cold or an earache is covered."[8]
Kevin McCarthy explains that doctors often feel an allegiance to their patients and are overly lenient in their diagnosis. "It is an incredibly common occurrence for health care providers, especially those with a long-term relationship with a patient, to authorize the individual to be absent from work when he/she is perfectly able to work. One of KHRMA's members had a situation in which a family doctor certified that a receptionist needed to be absent from work for four weeks because of an injured toe. Another has discovered situations in which employees have convinced health care providers to sign off on four days of absence, in order to enable the employee to qualify for FMLA leave, when the health care provider originally authorized two or three days off. In yet other instances, health care providers have offered to authorize absences of a duration greater than requested by the employee-patient. Many medical certifications are suspect."[9]
Paul Dunn from the WIX Allen Plant explains that oftentimes medical certifications for FMLA are signed for non-serious health conditions. "Make it [FMLA] for a serious health condition. I have people that use it as extra vacation. It is not difficult to get a Doctor to write a note putting you out to meet the requirements of the law. It would be more difficult if they had to diagnose a specific health condition. As written it is nightmare to administer and people abuse it constantly because of their attendance problems."[10]
Katie Jones from the Pennsylvania Turnpike Commission explains that opinion letters released by the Department of Labor have clouded the definition of a serious health condition. "We believe that opinion letters dated April 7, 1995 and December 12, 1996 should be abolished. Cold, flu, and other common ailments were not included in the original definition of a serious health condition. These opinion letters only expanded and confused the original definition of a serious health condition."[11]
Tom Norton of US Tsubaki in Massachusetts provides examples of leave related to stress and depression. "We have an employee in Chicopee who refused to do the job his supervisor assigned him to—not because of safety or other legitimate reason. It was because he 'didn't like that job'. When the Operations Manager told him that he had to do that job or receive discipline, he said 'I'm going home on FMLA'. He did go home and we did issue discipline (written warning) to him the following day. He called the Dept. of Labor in Boston and they told him (and me) we couldn't issue discipline to him because that would induce or trigger his FMLA for stress and depression. That is basically a 'no win' situation for the company."[12]
Norton also explains how the criterion for a serious health has morphed. "The most popular 'disease' these days is stress or depression. I don't have to tell you how easy it is to get a doctor's excuse to stay out for stress or depression. We currently have approx. 10 employees who have that certification from a doctor."[13]
Kathleen Pontone of Miles & Stockbridge, PC explains the negative impacts of FMLA. "Such a loose definition makes the FMLA a target for misapplication and abuse. Because of the confusion surrounding the definition of 'serious health condition' and the fear of violating FMLA policies, many employers feel compelled to either guess what the Department of Labor and courts will deem 'serious' or approve all FMLA leave requests received as long as a physician willingly completes the certification form. Employees with histories of chronic absenteeism or other workplace misbehaviors often use a vaguely defined 'serious health condition' certification to leave work and prevent their employer from taking disciplinary action against them. Such blatant abuse of the Act burdens employers and leaves well-intentioned employees and managers in attendance with additional work and stress."[14]
Jeffery Peterson from Delphi explains how vagueness concerning the health condition can lead to inefficiencies. "Certification forms are often returned incomplete, or with vague or contradictory information that suggests the health care provider did not understand the form or the FMLA's requirements. The regulations currently provide that a health care provider representing the employer may contact the employee's health care provider to obtain clarification, but only with the employee's 'permission.' Although this type of doctor-to doctor conversation is the most efficient way to obtain clarification, the required permission is frequently refused, particularly in those cases where improper FMLA use is suspected." [15]
Luis Villarruel from the Hancock Physician Network says that some patients seem to want FMLA protection because of absence problems rather than a medical condition. "In my experience it is used mainly by problem employees needing to justify their chronic absences. Other patients/employee with similar if not worse conditions do not seem to utilize it. Through litigation it is used in as little as 15 minute increments, used in my experiences by employees to arrive to work late."[16]
Suzanne Kilts feels that the term "serious health condition" should be redefined and explains why. "The term so frequently used in FMLA 'Serious Health Condition' should be changed to the ACTS Law, meaning 'A' Any 'C' Condition 'T' That 'S' Suits. These are examples of actual serious health conditions that we have had. An employee's wife who suffers from migraine headaches has an attack after he calls her at his lunch time. The same employee gets a call from his wife shortly after his machine has a mechanical problem he doesn't want to repair. The same employee again has his work assignment changed to an area he dislikes and a short time later he receives another call from his wife. Another intermittent employee's girlfriend goes home on vacation and an hour later his condition causes him to have to leave. This same individual can't be given time off so he can attend modeling classes so he files for FMLA and gets it. One night while he's off for an FMLA call off he text messages a fellow employee from a bar rubbing it in to him that he's working and the FMLA employee is enjoying a drink. Another case of abuse comes from an employee on the second shift who states that he can't start at his regular starting time of 3PM on a specific day. He's approached as to why he is unable to report to work and he said that the day he is going to be late he has to take his wife for a doctor appointment at 9AM. He is questioned why he still can't be on time for work and he states in order to get some sleep plus he wants to take his kids out Halloweening before he comes in to work.

"As long as the FMLA employee has vacation time remaining we can charge them a vacation day for their absence. Its amazing how clean of record they can keep until they have used up their vacation. On our intermittent FMLA employees, we have had several occasions where the employee does not call in for his FMLA absence until minutes before their shift start. Our Plant/Corporate personnel departments provide very little guidance as it's very plain to see they are scared stiff of possible law suits. Just last week I had an FMLA call off at 9:05AM in the morning. That's 2 hours and five minutes after their shift is to start."[17]
Ginger-Lee Rasler from AM General LLC explains how liberal medical certifications can breed abuse. "There have been certifications turned in approving an employee for up to every day each month for sinus infections. Moreover, in every case that we have questioned the authenticity or asked for recertification if they have gone outside the scope of the current certification, the physician has increased the amount of time off work per episode of incapacity."[18]
A person wishing to remain anonymous submitted the following comments concerning the difficulties of administering FMLA and the abuse that comes with it. "The most difficult portion of FMLA to administer and interpret is the determination of a Serious Health Condition. As an example, I had an employee request FMLA for their adult sibling. After several questions, the employee was determined not to be in parentus locus. So she was denied her request to care for her brother (who is married and has surviving parents) with a serious health condition because 'Brother' does not fall within the immediate family member definition in FMLA. Rightfully so. She then turns around a week later and claims she is requesting FMLA for a serious health condition for herself. Depression and mental instability due to the trauma caused by her brother's accident. We had given her 2 weeks time off (some of it even unpaid) prior to her FMLA request. However, she then wanted to extend it even longer because she wanted to be with her brother and did not have the vacation time saved up to do so."[19]
Linda Reed voices the frustration that many employers are dealing with when conditions appear to be temporary and only reoccur when employees are able to re-qualify for FMLA. "It's very frustrating to see the number of employees that take extensive leaves for such things as migraines, stress, back problems, depression…. There are also a number of employees that take intermittent leaves for the same reasons. They continue these leaves year after year. After all, it merely takes a certification from your doctor to get excused from work for days or weeks at a time. The odd thing is, when their 12 weeks ends, or their pay ends, they no longer need to miss any work."[20]
Cynthia Fox of Southwest Airlines Company explains how relatively minor medical conditions can lead to major abuse. "Examples of minor conditions that have qualified under the absence plus treatment provision of section 825.114, at Southwest, include: sinusitis, sore throat, headaches, sprains, laryngitis, ear infections, allergies, gastritis and bronchitis. The DOL itself lists several of these same conditions as examples of minor conditions that are not serious health conditions. See 29 CFR §825.114(c). One Southwest employee had intermittent FMLA approved for sinusitis on the basis of episodes that could occur up to 16 hours/day, 7days/week. This same employee took intermittent FMLA leave 35 times over a 7 month period usually in time increments of less than 8 hour shift. It is the absence plus treatment provision of the DOL's serious health condition regulation that is often used by those seeking unscheduled, intermittent FMLA leave for minor conditions.[21]
Daniel Finerty from Krukowski & Costello gives an example of an employee who was certified for a medical condition he did not have. "The evidence of abuses discussed among the Human Resource profession is almost legend. For example, take the case of the employee approved for intermittent leave, who took family and medical leave-designated leave and was found during that time working on his car at home. During the course of making the repairs, the employee attempted to remove a battery that was stuck from under the hood of the car—so stuck in fact, that one could visually see the employee bouncing the front end of the car up and down in order to remove the battery. It suffices to say that if leave was truly needed and/or if the condition was as had been certified, these gymnastics would have been physically impossible."[22]
Fortney Scott from the National Association of Manufacturers provides examples of abuse from manufacturing companies represented by the Association. "One automobile parts manufacturer in Ohio reports that FMLA medical certification forms have been received for leg cramps, warts and crying spells. The case law under the FMLA is replete with numerous similar instances. It is no surprise, then, that most NAM members believe there is no requirement for a serious medical condition at all; rather, the FMLA has, to quote one manufacturer, become 'a blank check to be absent.'

"A manufacturing employee was approved for intermittent leave under FMLA for migraine headaches. He claimed he was using FMLA for 'therapy.' After an unusual pattern of absences, the company took the time to observe his activities. His 'therapy' proved to be deer hunting.

"An employee was certified for chronic hypertension. His ailment seemed limited to Mondays and Fridays. However, the employee admitted that during his absences, he was not seeking medical treatment but was rather receiving 'care' at his girlfriend's house.

"A manufacturing employee on the night shift was approved for intermittent leave for migraine headaches. The company then learned that he also had a second job driving a school bus. The employee would often drive a bus early in the morning, even though he was not able to work for his entire shift the night before 'due to migraines.'

"An employee with a chronic illness missed over 30 days in a calendar year, almost all on Monday or Friday. On most days off, he was observed driving his ATV on his farm.

"A manufacturing employee was approved for intermittent leave under FMLA for migraine headaches. He has missed work for 12 of the last 15 Mondays.

"An employee has a medical certification on file for a chronic kidney stone problem. She misses blocks of days, either Monday and Tuesday, or Thursday and Friday, allegedly due to pains from the kidney stones. However, the employee admits she has received no treatment for the condition or the pain after her initial episode. In 2005, 45 days of work were missed. Irate co-workers report her absences coincide with her partner's days off."[23]

The manager of a nursing unit submitted anonymous comments on the abuse and hardship that FMLA creates. "Family Medical Leave Act is extremely vague in identifying specific disease entities that qualify under 'chronic illness.' Did you really intend for an employee who has a MD indicate 'menstrual cramps' or 'migraines' as a chronic condition to be excused from work for 12 weeks annually? This law is abused on a regular basis leading to excessive absenteeism. I manage a nursing unit, so when staff members fails to report to work, I must replace with another employee. The hospital is forced to pay overtime negatively impacting hospital operations. As the hospital is already subject to annual budget cuts from Medicaid and Medicare, this law is just one more contributor to demise of community hospitals across the country. The government intended to protect people who were being unfairly treated by employers but, the law is manipulated daily. The government should not be empowered to force human resource policies on private employers. If the law is to continue, it must be subject to major revisions."[24]

Allison Gehling from Select Health provides examples of the abuse of FMLA. "Unclear, or competing guidelines on the definition of 'serious health condition' allows for abuse. An example of abuse of the FMLA occurs when employees are placed on disciplinary action for attendance issues. Claiming that the disciplinary action is stressful, employees then ask their doctors to certify them for intermittent FMLA due to their 'stress' disorder. With the FMLA protection in place, employees can continue to violate their department attendance policies without consequence."[25]

Chapter 2

FMLA Leave Used to Excuse Tardiness

Is oversleeping a serious medical condition? What about having to walk several minutes from the back of the parking lot? Some irresponsible workers misuse the Family and Medical Leave Act to avoid the consequences of showing up to work late. They obtain a doctor's certification for a chronic condition and will claim they need FMLA leave when they run late in the morning. At times this means calling in from their car, or as they walk in from the parking lot. Others claim a single minute of FMLA leave to avoid clocking in late. These workers have no medical reason for showing up to work late; they simply want to avoid discipline for tardiness.

Congress never intended for workers to misuse the act this way. Companies have good reasons to require workers to show up on time. Late arrivals can disrupt production, inconvenience customers, and hurt morale. Companies that have problems with tardiness should be able to reward workers for showing up on time and discipline them for arriving to work late. Yet irresponsible workers now use FMLA leave to avoid punishment for tardiness.

Wendy Nutt from GM Mirage explains that FMLA appears to increase tardiness of employees. "Allowing leave in small increments fosters abuse relative to attendance and tardiness policies. For example, we regularly have employees call in and report that they will be 'fifteen minutes' or 'thirty minutes' late because of their FMLA illness. Clearly, we question an employee calling from their car while on route to work to suggest that they are going to be fifteen minutes late as a result of their serious health condition, yet they are able to work a full shift once they arrive. Employees call in indicating that employee will be tardy (15 minutes or 30 minutes) because of their FMLA condition."[26]
F. Scott Page from Seyfarth & Shaw Attorneys LLP further makes the point that FMLA appears to be linked with tardiness because there is no recourse for employers. "[O]nce a medical certification is submitted and the leave approved, many employees on FMLA leave claim that questionable tardiness and absences are attributable to the chronic health condition of the employee or covered family member. We have numerous instances in which employees who are a few minutes late for work claim that they are tardy because of their chronic condition and protected by FMLA leave."[27]
Sue Sumler from the Manufacturers' Alliance noted that many of their member companies' employees regularly "claim FMLA intermittent leave to excuse tardiness. FMLA leaves increase when attendance policies are tightened up." Speaking further of employee abuses, MAPI says of one of its member companies that "[t]he company views persons involved in this kind of abuse as marginal employees, yet it believes they cannot be terminated because of the FMLA protections that are probably being abused."[28]
Cynthia Fox of Southwest Airlines Company comments on how employees use FMLA to excuse their tardiness for work. "The regulations currently allow employees to take intermittent leave in the shortest time increments recognized by their employer's payroll system, of less than one hour. 29 CFR §825.203(d). At Southwest, this time increment is three minutes. This facilitates abuse by some employees, who use this to cover tardies, oversleeping, alarms not going off and the like. They show up to work late impacting our operation and their co-workers, and unfairly use the protections of FMLA to gain an excused late arrival, rather than a tardy under the attendance rules. This is also unduly burdensome to administer for employers." [29]
Allison Michael gives an example of the ridiculousness of having to account for FMLA by the minute. "Our Company can track hours worked to the second. This drives people to call in 'FMLA' at 5:58 and clock in at 6:01 in order to excuse a one minute tardy in some instances. The fact that they used 'FMLA' as the reason for the tardy protects them and the Company is unable to issue discipline. This is very frustrating for us, because they are calling us from the parking lot. If the employee is running late he/she has to park in the back part of the lot and it will take him/her a few minutes to get to the gate and clock in."[30]
Rebecca Dent from the Employers Association of New Jersey comments on how the FMLA is used to cover for tardiness rather than for legitimate health concerns. "Some employees use small periods of intermittent leave as an excuse for lateness, making an employer's attendance control programs a sham and impairing general morale. An employer has no viable means of verifying that a 'period of incapacity' exists. The employee is not required to seek treatment from his health care professional, and the employer has limited recourse for clarification. If the employer requires a recertification, seeking further explanation, then the employer has tied his own hands for any further options as second and third opinions may not be required for recertification 825.308(e)."[31]

Chapter 3

FMLA Used to Avoid Undesirable Work

Many jobs involve shift work and tasks that are less desirable than others. Night shifts, overtime, and holiday weekends are generally unpopular times for employees to work. However, some organizations require 24-hour operation, and employers must hire workers to work at undesirable times. When a train needs to leave at 3 a.m., an order needs to be completed for a customer, or 911 emergency operations must be manned day and night, someone has to work.

Employers have found ways to spread the burden fairly, through seniority, shift rotation, etc. The Family and Medical Leave Act undermines an employer's efforts to create a fair system for its workers. FMLA allows workers with medical certifications to call in whenever they wish for up to 12 weeks a year. Unscrupulous employees have used this protection to convert variable schedules to a Monday through Friday workweek, make full-time positions part-time positions, avoid mandatory overtime, skip night shifts, and leave work if assigned undesirable tasks. This use of FMLA is unrelated to serious health conditions and is being abused to obtain protections that were not intended by the law.

Mary Anne Gibbons from the United States Postal Service explains how FMLA undermines absence control. "The Department has acknowledged in its request for comments 'that the regulations and administrative details required by them may work in combination to allow certain employees to attempt to evade legitimate absence control policies.' Given the large number of postal employees who seek FMLA protection, we have experience[d] several occasions when significant number of employees in a given office or facility submit certifications stating that they cannot work overtime. Consequently, all the other employees must now work even more overtime to compensate for their peers' absence. Eventually, though, many of these employees then submit their own certifications for overtime exemption. The result is an office or shift where there are no, or very few, employees who can work overtime.

"A more extreme, but still real-life, example of a case where a second opinion is warranted involves a physician whose certification states that the employee needs treatment for an unspecified medical treatment three times a year. He states she must be absent for this treatment for 'two weeks in July, the week of Thanksgiving and the week between Christmas and New Years.' He also states that such a treatment schedule is needed for the duration of her employment. Requests for clarification are ignored until eventually, the physician submits an irate note charging the postal service with 'interference with patient treatment' and second guessing his opinion. Yet, given that in the Postal Service these particular weeks constitute prime vacation periods and are awarded on a seniority basis, it is not unreasonable to question the validity of the employee's need for medical treatment during those times."[32]
David Berg representing the Air Transport Association of America explains the difficulties of covering undesired shifts. "Unfortunately, FMLA can be manipulated to convert employees' otherwise variable schedules into a Monday-to-Friday routine, and/or to avoid weekend assignments. For example, one member airline has found that 80% of FMLA usage by airport operations workers occurs in conjunction with a weekend. At another airline, use of FMLA routinely doubles every August as summer vacations linger and then drops by 50 percent in September. Likewise, passenger carriers routinely see increased FMLA use by flight attendants who are scheduled to work the Thanksgiving and Christmas holidays. As a result, airlines are forced to overstaff their reserve systems, in some cases by several hundred paid reservists, at holiday periods in order to maintain scheduled flight operations."[33]
Charles Einsiedler from the Maine Pulp & Paper Association explains other problems that FMLA creates. "The intermittent leave provision of the FMLA has, in practice, enabled full-time employees to maintain part-time schedules. In addition, it has excused employees from working any mandatory overtime, even when overtime is require for their positions. This is so because there is no limit, other than the 12 week entitlement, to the number of times an employee may take intermittent leave. As a result, a full time employee may take off one day a week each and every week of the year and never exhaust his or her FMLA entitlement. Similarly, an employee in a position requiring mandatory overtime may, in fact, never work that overtime because he or she takes those hours as FMLA leave each week, again never exhausting his or her entitlement in any 12-month period."[34]
Sue Sumler of the Manufacturers' Alliance , writing on behalf of one of the group's represented companies, noted employees appeared to be using FMLA to avoid certain shifts. "It appears that a number of people misuse FMLA leave at another member company, particularly intermittent leave, to miss undesired shifts. This company has had a history of employees taking several days off during the week on unpaid FMLA leave and then working overtime on Saturday or double time on Sunday to make up the lost wages. Many employees have used the FMLA excuse to get out of working a required shift."
Sumler also noted that one member company stated that "[m]any [employees] use intermittent leave in coordination with their vacation so as to give a longer excused leave, or on Fridays to get a longer weekend if they are not working overtime."[35]
Wendy Nutt from GM Mirage explains that FMLA is used to avoid undesired assignments. "Employees request FMLA time off after arriving at work when they are assigned a station, task, or function that is not to their satisfaction."[36]
Tom Norton of US Tsubaki tells of some of the abuses of FMLA that his group deals with. "We have some employees who take off hundreds of hours per year—480 hours for FMLA—plus hundreds more for other reasons. The net result is some employees who only work about half a year…We also have a hand full of employees who have the 'Friday/Monday syndrome'. I'm sure you know what that is, but I'm not sure what we can do about it.
"We also have about ½ dozen employees who use FMLA when they don't like the job their supervisor assigned them to, when they are mad at a fellow employee or if it is hot in the plant that day."[37]
Jill May from The Miami Valley Human Resource Association explains that "The guidelines for intermittent leave are too lenient. While this creates difficulty covering the work that needs to be done, it also seems to contribute to abuse of family medical leave. Intermittent leave seems to be linked to employees being restricted from working overtime and an increase of Monday/Friday absences."[38]
A source wishing to remain anonymous explains how employees use FMLA to avoid undesired shifts. "An issue that I have seen more often than we should is Intermittent FMLA. Employees regularly take unscheduled leave for a day, half day or other variations until they have exhausted 90 days. This can go on for a year. Managers have recognized that these employees are taking advantage of this when there are assignments that employees do not want to do, i.e. in Corrections, they take it at the end of a regular eight hour shift to avoid working their occasional required two shifts. Currently, we have an employee that exercised this option mid-December until January 17, 2007 to avoid pending termination."[39]
Michelle Bohna from the Merix Corporation explains how intermittent leave can be used to obtain desired work times. "We have had an employee who came in tardy, nearly everyday by only 2 to 10 minutes, and said it was from a sleeping disorder and covered under FMLA. When we tried to adjust her schedule to better accommodate the condition, she didn't want to because it would not allow her to get off at her earlier time. Employees usually invoking intermittent leave never exhaust their FMLA entitlement so it is just an ongoing issue that starts over every leave year. Allows employees to 'pick' what jobs they want to do."[40]
Janet L. Bartelmay from Association of American Railroads tells of the impact of FMLA leave on the railroad industry. "In the railroad industry, workers from the railroad's pool or extra board are called in roughly two or three hours before they are needed (as prescribed in the pertinent labor agreement). Unfortunately, a railroad worker so inclined can use the existing regulatory scheme to repeatedly use very small increments of FMA leave to avoid unwanted assignments—disrupting railroad operations and unfairly impacting his or her co-workers. For example, a worker could call in to the railroad at 1:00 a.m. and take FMLA leave (e.g., for a chronic migraine), thereby preventing the railroad from assigning him or her to a 3:00 a.m. train run (or whatever assignment that worker may find unpleasant). That same worker can then call back a short period later (as soon as the worker feels that he or she has safely avoided that assignment), knowing that he or she would be assigned a later train run—thus obtaining a more favored assignment at a 'cost' of only an hour or two (or less!) of FMA leave. The opportunity for this type of misuse would be greatly reduced if the employer were permitted to count the entire missed trip as FMLA leave.

Bartlemay also goes on to explain how FMLA is manipulated to avoid certain shifts. "Another large railroad employer similarly reports FMA usage in one craft significantly higher than in other crafts (17 percent of the employees in the one craft using FMLA leave, as compared to 3.5 percent use among all other employees). In the craft with the high usage, employees do not have a regular schedule but instead are on call, and the employer does not require the worker to substitute paid leave for FMLA absences of less than 12 hours (because the employer does not grant paid leave in smaller increments). Data show the following related to the craft with the higher FMA leave on this railroad: (a.) most absences in this craft are in increments of less than 12 hours; (b.) the rate of FMLA leave in this craft is disproportionately higher on weekends and holidays; (c.) the use of FMA leave increases throughout the course of the calendar year (as the availability of paid leave decreases); and (d.) regional variations are significant (with 15 percent of the employees in Portland, Oregon taking FMLA leave during the first half of 2006, while only 5 percent of the workers in Kansas City and only 2 percent of the workers in Denver taking leave during that same period)."[41]
Dennis Sharp submitted his personal opinion concerning the abuses of FMLA. "Employees commonly refer to FMLA as the Friday - Monday Leave Act for obvious reasons. Intermittent FMLA is being completely abused."[42]
Allison Michael writing for Coolidge Wall LPA Inc. on behalf of one of their Ohio manufacturing clients explains how FMLA is being used to obtain vacation time. "Intermittent absences are out of control. Employees come in and ask for vacation. If the Company cannot accommodate the vacation request, the employee immediately says 'OK I will be leaving at such and such time and using FMLA time.' Also, the employees work until they receive their paychecks and then say they are leaving and using FMLA time as soon as they get their checks."[43]
Amy Todd of WRCA stated that FMLA abusers often miss a lot of work at the beginning and end of the work week. "We have several employees who are certified under FMLA for the condition of migraines. The doctors have confirmed this condition and have listed that they will need to take off on an as needed basis, which leaves it wide open. Most of these employees are taking medication for their condition, yet seem to miss an extraordinary amount of time each year. In two specific cases that we have at our organization they show a pattern of missing at the beginning and end of a work week. We have questioned the employees and doctors about this, only to be told that the occurrence of the migraines can't be predicted and it is not known why they tend to occur at this time."[44]
Kathryn Curley from AIG explains that employees appear to be using FMLA to get time off to which they are not entitled. "An employee requested 12 weeks FMLA to care for her husband who was going to FL 1/1- 3/31. She was needed to assist him with medication preparation and some ADLs [activities of daily living]. She was able to work prior to leaving for FL by assisting him before & after work, but as he was going to their winter home she 'had' to go with him to continue assisting him with these daily activities.

"Many employees request several consecutive weeks of FMLA to care for parents who live outside the country. The Certification Form provides clinical facts to indicate the parent needs assistance with ADLs. The fact is these employees request the same 3 months out of work each year to 'go home' to care for the parent. The requirements do not allow us to ask how the parent copes the remainder of the year.

"Employees routinely submit Certification Forms for a chronic illness with expectations of absence of 2-3 times per month. Only after a few months do we see the pattern that each absence is a Monday or Friday and request clarification from the Provider. By then the employee has likely enjoyed several long weekends. With the inability to do a Second Opinion on re-certifications, we must depend on the treating Provider to clarify exact expectations."[45]
Greinilda Anistead from Cardone FML explains how many of their immigrant workers appear to be using FMLA for extended vacations to their home countries. "A very large portion of our population at CARDONE Industries consists of immigrants. We hire a large number of Indians, Albanians, Haitians, Hispanics and others. We currently have an issue with high absenteeism due to FMLA being used to extend vacation to visit their countries.
"FMLA has poor controls in place. The employer faces poor controls in processing documentation with very little integrity as attending physicians in other countries are paid to process fraudulent paperwork."[46]
Vikki Brueggeman of Zimbrick, Inc., provides an example of an employee using FMLA to get preferred work hours. "It is highly suspicious when an employee is required to leave 2 hours early on Fridays and arrive 4 hours late on Mondays for a mental health issue. Leaving early on Fridays is because the employee experiences extreme stress during the rush hours commute to her home. Is this really what the regulation intended? Employers don't control where employees live. If the employee is stressed out over the commute then she should move. We have another employee where the job requires an average 43 hour week. However, the employee is conveniently on intermittent leave to reduce his work schedule to 37 hours per week because the long hours are causing him stress."[47]
Michael Henry of the County of Los Angeles provides a similar example of abuse. "In another one of our cases, an employee requested one day a week for vacation until her retirement in December 2007. The employee's request was denied. The employee then requested FMLA leave one-day per week until her retirement for psychiatric treatment of job related stress. We find cases like this when an employee either does not want to work a certain shift or is not given time off."[48]
A commenter wishing to remain anonymous explains how employees use FMLA to avoid unwanted overtime. "I worked in a 24 hour a day manufacturing facility for 25 years. The Family Leave abuse is much worse than is being reported. I saw (daily) employees invoke FMLA in order to avoid being forced into overtime, avoid facing discipline action due to absenteeism and even used to make time for second jobs. This law is sucking the blood out of American manufacturing. No wonder we are losing jobs overseas."[49]
Vicki Spaulding of Akers Packaging Service, Inc., explains how employees use FMLA to get additional personal days off. "We are a small employer with approximately 140 employees. The FMLA regulations have created a 'nightmare' for our company. We have had several employees take intermittent FMLA leave. Any time they do not want to come in to work—whether they are sick or just want to go fishing for the day—they call off and ask for an FMLA day. Any time they are not allowed a day of vacation (because of lack of enough required notice, or due to seniority), they call off FMLA. Anytime we place them in a job in our factory that they do not want to do, they go home sick using FMLA. We have had an employee request a week of vacation during the holidays and the request was denied because we had so many other employees off. Then the employee just called off for the entire week using FMLA, and then went on her vacation to Florida ."[50]
Roger Wapner from the East Bay Municipal Utility District explains how employees are using FMLA to obtain essentially part-time jobs. "An employee can change their employment from a full time to a part time position by having their doctor certify they have a serious medical condition that requires them to take every Friday off. This situation can be ongoing with a yearly medical recertification. The FMLA entitlement bypasses the ADA review (and in California the more expansive FEHA process) that would examine whether the essential duties of the job are getting accomplished with this type of schedule reduction. We have had only 2 employees in this situation but anticipate additional applications in the future.

"A more frequent concern is when employees obtain a medical certification for an ongoing condition that might flare up at any unknown time. We have sometimes experienced this as an open-ended entitlement for unscheduled vacation and tardiness with problem employees."[51]
Melissa Dunn from the Blackhawk Community Credit Union says that the credit union, like many other companies, suffers from loss of employees on Mondays and Fridays in particular. "Everyday we have call ins from employees that use intermittent leave. While I believe that for some this leave is important to care for their health or health of a loved one but unfortunately in many cases major abuse is suspected. I currently have 3 employees that call in intermittent FMLA leave on Monday's and Fridays only. More often than not when an employee has run out of sick days they start calling in intermittent FMLA leave. I have been told by our attorney that proving abuse is difficult and expensive and in many cases it is easier for employers to put up with the suspected abuse. To say the least this is very frustrating."[52]
Phyllis Lewandowski of The McGuire Group, Inc., cites one example of an employee manipulating FMLA so that he would not be moved to a less desirable shift. "I recall one specific employee who used his intermittent FMLA quite regularly (average of one day per week). This employee worked on our 11 p.m. to 7 a.m. shift, which has the least amount of staff assigned to this shift. Accordingly, when he called to report his (weekly) absence, it placed a huge burden on the facility. We suggested that he transfer to the 7 a.m. to 3 p.m. shift. This shift has the largest amount of staff. An absence on this shift has less of a staffing impact. Of course, we were unsuccessful in our hope of a voluntary change of shift, and we are not permitted to force the issue. Our hands our tied, co-workers become frustrated at having to work short-handed, and the cycle continues."[53]
Sara Ricker explains that the most common time to use FMLA is around holidays. "Employees with intermittent leave abuse the system. They can call in sick any time they like and claim it is covered under FMLA. It is amazing how many employees need FMLA days the day before or after a holiday and there is absolutely nothing we can do about it. Employers need a better way to verify medical conditions and more guidelines on what a serious medical condition is."[54]
Jean Thompson from The Endoscopy Center explains what a hardship it is to have employees come in late and leave early. "Intermittent leave is a nightmare. Employees can come and go as they choose. It is even harder to control when the leave is for an employee's family member. Employees make the decision and tell the employer when they will be off. Abuse comes into play when an employee uses this to come in late or leave early at a whim."[55]
Marian McDowell from AT&T provides more testimony that FMLA is used for vacation or time off rather than a serious health condition. "Abuse uncovered by Asset Protection ranges from forged medical certifications to using leave for vacation or to take a day off with a co-worker or significant other. There have also been cases involving employees who take FMLA leave and are found to be working elsewhere or managing their own business."[56]
A commenter who wishes to remain anonymous submitted the following statement concerning the use of FMLA for vacation-related leave. "Many employees abuse this Law. Some get certifications (WH380) from doctors they know and can get any type of wording they want on the WH380.They tell the doctor the duration and how many times they need to take off. A lot of times they call off FMLA before or after their non-schedule day so they can take couple of days, especially if they are going on vacation or a Holiday week-end."[57]
A plant manager who wishes to remain anonymous submitted the following statement concerning the use of FMLA for vacation-related leave. "I work for Unified Western Grocers (Formerly Certified Grocers. of Calif, LTD). I am the plant manager in their main distribution center in Commerce. We have been plagued by the capricious use of FMLA by a segment of our union population. People are using migraines as a reason to NOT work overtime on any given day and miss work days at will. One of our people has diabetes and has gone years with missing every Monday, because he couldn't get his eating habits right on the weekend. A three day weekend, every week. We have FMLA for tendonitis in the forearm. I have that condition and weight train. I have told him to get the same compression bands that I use, he prefers time off at will. We have FMLA because someone's child has tubes in their ears, pretty common, but he misses, especially in the summer. Since they have to give up vacation time for FMLA days missed, they schedule their vacations early in the year, and take FMLA later when there is nothing left to take. Good intentions crafted this law, but the abuses are HUGE."[58]
Karen Pickett from Discover Vision discusses how employees play the system to get desired time off. "From the viewpoint of someone who has dealt with FMLA both from an H.R. and operational viewpoint in a company of approximately 250 employees, the experience has been that 50% to 75% of all using the act for time off have learned how to 'play the system'. As a company with generous paid time off benefits who requires employees to use paid time off prior to time off without pay, some employees using FMLA have learned how to use their paid time off benefits and then apply for FMLA for questionable reasons resulting in excessive absenteeism knowing their jobs are protected by FMLA. Some have used a child's legitimate illness to gain FMLA time and then used the time for a family vacation. People with knee injuries have used FMLA to take the full 12 weeks off their sit-down jobs while others with similar injuries have been off work for 6 weeks and returned. For the 25% to 50% of employees using FMLA for legitimate need, any responsible company would work with those employees on their time-off needs without FMLA."[59]
David Cummins from Clow Valve Co. gives an example of how blatant the abuse of FMLA can be. "Here is a typical case in point: a male who worked on our weekend shift went to our company doctor during the week who certified this employee to be suffering from 'depression' and needed to be off work 6 weeks. I questioned the doctor, who said it was his determination that the employee needed to be off work completely and could not work for 6 weeks. The next day this employee came to my office and thought he could come back to work but might need to take off at any time depending how 'emotional' he became. I told him the doctor said he wasn't allowed to work for 6 weeks. Upon hearing that, this employee said he would just have to make his living gambling at a local casino for the next 6 weeks. This employee also had attendance problems and his girlfriend had allegedly thrown him out of her house. People saw him moving out when he was on FMLA Leave. (I understand just because a person can't work doesn't mean they can't move their living quarters.) This employee met with me and the doctor after not working for 2 weeks. He had convinced the doctor to allow him intermittent leave. During the conversation this employee said, 'now if I need some time off, I don't have to come to work. Right?' I said would that be for doctor visits? He said no, just in case I have an emotionally bad day."[60]
Thomas Norton, who works at a manufacturing company, explains how FMLA has been abused by employees. "We have an employee in Chicopee who refused to do the job his supervisor assigned him to—not because of safety or other legitimate reason. It was because he 'didn't like that job'. When the Operations Manager told him that he had to do that job or receive discipline, he said 'I'm going home on FMLA'. He did go home and we did issue discipline (written warning) to him the following day. He called the Dept. of Labor in Boston and they told him (and me) we couldn't issue discipline to him because that would induce or trigger his FMLA for stress and depression. That is basically a 'no win' situation for the company."[61]
Scott Titzer from Infinity Molding and Assembly Inc. provides examples of abuse of FMLA in the company. "Recently this regulation has morphed into a legal means to take time off from work without the need to follow their employer's guidelines. Some examples are:

Take time off from work 4 hours at a time to take a non dependent family member to a doctors appointment.

Take a day off work each week for a headache—most weeks.

Take a day off work for cramps.

Immediately start taking time off on the first eligible day for FMLA (employee had no previous attendance issues their first year)"[62]
Tricia Miller from Bendix Commercial Vehicle System LLC explains that conditions covered by FMLA often do not appear until an employee gets into trouble because of excessive absences. "FMLA does not allow missed time to be counted against attendance. Although, there are employees who truly use the FMLA for its intended purposes, we have employees who are believed to abuse the intermittent FMLA. It is amazing the number of employees who get themselves into attendance trouble and then come back to us stating they have a condition such as migraine headaches, back pain, irritable bowel syndrome, etc. and they get a doctor to complete a certification. Once approved the employees that have had a history of attendance problems, their missed time under FMLA sky rockets. These employees can wake up late for work and call in and say they missed because of their FMLA where others are upheld to a strict attendance policy. If employees having approved FMLA don't want to work a required overtime day, they call in FMLA…

"We have many coworkers of employees that have intermittent FMLA tell us that the employees are using the FMLA time for things other than their illnesses (shopping, out for breakfast, cover over sleeping, when have other plans). We have had people take FMLA and miss a whole day of work, but they go to college courses, paid by the company, that night because there was a test or a presentation due. We have had employees tell us that one coworker takes time off because he wants to buy the new video game that came out or that he simply takes the time to stay home and play video games. We have employees who don't miss any work for extensive periods of time because they have used all their FMLA allotment, but once they get some time back, they are missing again."[63]
Jill Bodensteiner from the University of Notre Dame explains how employees take advantage of FMLA by taking days off as FMLA leave when that is clearly not the reason for the leave. "The primary problem with intermittent leave is that, once an employee is approved for such leave by the University's Office of Human Resources, the employee can call his/her supervisor at any given time and say 'I'm not coming in today—it's FMLA.' The supervisor does not have the time, information or resources available to make a determination as to whether that day's absence is actually for an FMLA-approved reason. The Office of Human Resources has neither the time nor the staff to field all FMLA or other 'sick day' calls at the University. As such, the employees have discovered a gap in knowledge on the part of the University and as a result they abuse intermittent leave endlessly. Indeed, the hours actually taken as 'FMLA-approved leave' consistently exceed the hours suggested by the physician in the medical certification."[64]
Jim Kyger representing Printing Industries of America, Inc., provides some of the common complaints that they receive from member companies. "One member of PIA recent [sic] told us that once employees became aware of FMLA intermittent leave, 30 percent of employees in one of their key departments were using it. Not surprisingly, heavy use of FMLA intermittent leave was used around company-recognized holidays. Serious overtime costs were incurred and friction among employees resulted. Other common complaints from PIA members include the following:

Unforeseen, intermittent FMLA was used for days that were previously denied as requested vacation days.

Unforeseen, intermittent FMLA leave was taken by an employee and it was later discovered that he had taken a vacation with his spouse to Ireland.

Unforeseen, intermittent FMLA leave was taken by an employee who was later found to be attending professional baseball games each day that leave was taken.

Unforeseen, intermittent FMLA leave is often taken when overtime is scheduled for the qualified employees."[65]

Becky Brabeck provides an example of how absurd abuse can be. "There are those that are honest, then there are those who consider it an additional 12 weeks of vacation per year, using it for non-FMLA reasons but calling in to work and claiming it is FMLA. Co-workers have volunteered to us that, for instance, an employee who claimed she couldn't come in to work because her asthma was acting up, was actually at the bar and smoking! Another employee, we found, used her FMLA time to stay home and study for a test."[66]
Patrick Mok submitted the following statement concerning an employee using FMLA for vacation time "Abuse of FMLA is rather widespread. I had an employee who requested a 6 week vacation and was turned down due to the length of the request. He turned around got his friend who is an infectious disease doctor to write a note saying he must be off work due to a problem of his leg. He ended up going to Southeast Asia rain forest and had a vacation there. This went on and off for 3 years every time he wanted an extended vacation, he just asked his friend to write a note."[67]
Sally Burnell, who works for the state of Indiana , provides an example of an employee who used FMLA to avoid working undesirable shifts. "Employee with depression submitted a certification stating she needed a three-day/week schedule: Tuesday, Wednesday, and Thursday. She had regularly scheduled therapy appointments on Wednesday and wanted those charged to FMLA leave in addition to Mondays and Fridays, thereby actually resulting in a schedule of less than three days/week, because she had another job that required travel over the weekends. Employee was told there was no medical necessity identified for that specific schedule and that Wednesdays would have to be one of the two weekly FMLA leave days. The employee submitted a new doctor's statement that she needed to be off continuously for the next twelve weeks."

Burnell goes on to explain how FMLA is often used to avoid disciplinary action rather than because of serious medical conditions. "The most common reason cited for FMLA leave is the employee's own condition, not that of a spouse, child or parent, and the number one reason is stress or depression either independently or as a companion to / exacerbation of other medical condition(s). The State has generous leave policies that do not require the types of information necessary to determine whether the absence is for a serious health condition or a minor one. Therefore, many employees quietly exhaust their accrued paid leave balances and then inform management of a condition that qualifies for FMLA leave thereby compounding the amount of available authorized leave and avoiding disciplinary action for attendance / punctuality issues." [68]

Chapter 4

Suspicious Leave Patterns

Congress intended the Family and Medical Leave Act to enable employees to take time off work to attend to family or medical concerns. It was never intended to allow workers to leave work at will and suffer no consequences. But many employers and coworkers have found that this is exactly what has happened. While many employees use FMLA leave responsibly to care for family members or in times of serious illness, other employees have highly questionable FMLA leave patterns.

Employers have found that FMLA leave requests spike on Mondays and Fridays, as well as on the first day of hunting season. Employees with perfect attendance records suddenly develop chronic conditions when they become eligible for medical leave—although these health problems are not in evidence when they have used up all of their FMLA leave time. Other employees have taken medical leave when they are assigned to work weekends, leaving more work for their coworkers to manage. One employee obtained a doctor's certification stating that she had to leave several hours early on Friday afternoons because negotiating rush hour traffic was too stressful. Many employees have used—or misused—medical leave in highly suspicious ways.

Sue Sumler, writing on behalf of one of companies represented by the Manufacturers' Alliance , explains some of the suspicious patterns associated with misuse of FMLA related leave. "It appears that a number of people misuse FMLA leave at another member company, particularly intermittent leave, to miss undesired shifts. This company has had a history of employees taking several days off during the week on unpaid FMLA leave and then working overtime on Saturday or double time on Sunday to make up the lost wages. Many employees have used the FMLA excuse to get out of working a required shift."

The Manufacturers' Alliance also noted that in another of its member companies, "[m]any [employees] use intermittent leave in coordination with their vacation so as to give a longer excused leave, or on Fridays to get a longer weekend if they are not working overtime."[69]
Timothy McConville with Willcox & Savage, Attorneys at Law, notes the difficulty employers face in handling unscheduled absences due to FMLA's burdensome policies. "Employers frequently struggle with unpredictable, unscheduled intermittent leave for employees who have chronic conditions that can flare up suddenly and for unspecified duration…Fifty-three percent of our survey respondents reported that they experienced problems when workers taken [sic] unscheduled intermittent leave under the FMLA. With regard to the frequency of intermittent leave problems, twenty-five percent of the survey respondents reported that they often have challenges related to unpredictable use of intermittent leave, and an additional twenty-two percent reported that they sometimes have challenges regarding such leave. Sixty-nine percent of survey respondents reported challenges in obtaining adequate notice from the employees of their need for FMLA leave, specifically including intermittent or reduced schedule leave, and thirty-one percent said they experience this problem often."[70]
Wendy Nutt with GM Mirage also reports abuse of FMLA so that employees can take vacation time that would otherwise have been denied. "Employees request extra days off, early outs and/or vacation time and are denied, then subsequently call off and use intermittent FMLA time for the same dates." Further, "Employees engage in a pattern of calling in for FMLA leave on days immediately preceding and following scheduled days off (e.g. call offs for FMLA leave on Friday/Monday)."
This employee also observes suspicious patterns with respect to their tipped job classifications: "Employees request FMLA time off after arriving at work when business is slow," or conversely, they "use intermittent FMLA to work only the dates when employees know that business levels will be high."[71]
Juanita Beecher of ORC Worldwide explains how FMLA is used as a convenient tool to take additional unauthorized vacation without penalty. "[S]ome ailments like asthma and migraines tend to affect employees only on weekends, early on Monday or late on Friday afternoons. The employers feel that their hands are tied in these 'chronic' situations that allow an employee to 'just say FMLA and no-show.'"[72]
Randel Johnson of the U.S. Chamber of Commerce further confirms employee abuse of FMLA for what should be vacation days. "Among [companies represented], absenteeism attributed solely to FMLA leave on any given day was estimated to be about 5 percent, and at least one employer overstaffed by 10 percent to accommodate the absence rate due solely to FMLA leave. However, many managers reported that certain types of days, including the day after Super Bowl Sunday or the first day of hunting season, had much higher absentee rates for those employees with an FMLA medical certification. There was a high degree of consistency in high absentee rates linked to specific holidays reported across companies and industries."[73]
Scott Langelin from Briggs & Stratton explains the costs the company has incurred because of FMLA. "This facility had an average of 1,060 hourly employees with about 875 being eligible to take FMLA (336 female and 536 male). That same facility reports usage of 25,413 hours of FMLA during the first 9 months of 2006. THAT AMOUNTS TO AVERAGE WEEKLY ABSENCE HOURS OF ABOUT 650. For the same 9 month period, similar high volume of intermittent leave in another facility with 800 hourly employees accounted for 16,800 hours."[74]
Beth Kirschbaum with Union Pacific Railroad explains that many employees routinely take FMLA time off during holidays and weekends, coincides with the busiest times for their industry. "The rate of train and Engine Service FMLA use is disproportionately higher on weekends and holidays compared to weekdays. Again, there is no medical explanation for a higher rate of FMLA use on weekends and holidays among these employees. The only explanation is that TE&Y employees are required to be available to work on weekends and holidays when typically the rest of the population is engaging in leisure activities. However, weekends are often Union Pacific's most critical time for servicing customers and when manpower is typically stretched thinnest due to vacations and other absences affecting crew availability. Again, when management puts a moratorium on granting paid leave on weekends and holidays due to labor shortages, FMLA use goes up because the company cannot restrict an employee's access to FMLA leave under most circumstances."[75]
Anna Dancy of the South Central Human Resource Management Association provides examples of patterns of behavior that suggest abuse. "This is primarily a problem with respect to unscheduled intermittent leave for chronic conditions. Our members report the following obstacles: (a) employees with a permanent chronic condition obtain a medical certification renewal of that condition every 12 months, and can then be absent up to 60 days each year with no consequences, a situation that continues for their entire tenure with their employers; (b) employees with such medical certifications who exhaust their 60 days of absence become 'miraculously cured' for the remainder of the 12-month period and are not absent, until the next 12-month period starts and they renew their medical certifications; (c) employees with non-FMLA attendance problems who have received discipline for those absences suddenly develop a chronic condition requiring intermittent leave so that they can avoid further disciplinary action; and (d) employees who request vacation or personal time off, but are denied because of business needs, suddenly have a chronic condition requiring intermittent leave and call in with an 'FMLA absence' on the day(s) they originally requested as vacation."[76]
Beth Kirschbaum from Union Pacific Railroad explains the historical trend of FMLA use. "Data collected over the past three years reveals a general upward trend of FMLA use throughout the calendar year among Training and Engine Service employees with January being the month of least usage and December the highest. Again, there is no medical explanation to support this observable pattern of use. However, employees' use of available paid leave such as vacation and personal leave decreases throughout the year as employees deplete their paid leave banks, leaving FMLA leave as the only 'excused' manner of taking time off under the company's attendance policy. Therefore, FMLA leave increases even though there is no reason to believe employees or their family members become more ill as the year progresses.

"Data also shows that FMLA use among Train and Engine Service employees varies disproportional from one location or region to another, again without medical explanation to support this variance in use. The percentage of Train and Engine Service employees in the Portland, Oregon area, for instance, who use FMLA leave in the first half of 2006 was approximately 15%. However, less than 5% of employees in the Kansas City, Missouri area used FMLA leave in the same time period while only 2% of employees in the Denver, Colorado area used FMLA leave. There is no reason to believe employees and their families are any more likely to suffer from serious health conditions in Portland versus Kansas City or Denver." [77]
Tom Norton with U.S. Tsubaki explains that workers will misuse FMLA to avoid being penalized for frequent tardiness and unexcused absences. "Some employees use it as a 'shield' to protect themselves against the company's Absenteeism Policy. When they get close to suspension or termination under the policy, then, all of a sudden, they go on FMLA. Some even brag to their fellow employees, 'I'm not going to get fired, I'll just go on FMLA.' As a result, only two employees in the past 2 years have been terminated due to absenteeism."[78]
Timothy McConville from Willcox & Savage, Attorneys at Law, defending employers regarding FMLA, explains the struggle employers have with intermittent leave. "Employers frequently struggle with unpredictable, unscheduled intermittent leave for employees who have chronic conditions that can flare up suddenly and for unspecified duration…Fifty-three percent of our survey respondents reported that they experienced problems when workers taken [sic] unscheduled intermittent leave under the FMLA. With regard to the frequency of intermittent leave problems, twenty-five percent of the survey respondents reported that they often have challenges related to unpredictable use of intermittent leave, and an additional twenty-two percent reported that they sometimes have challenges regarding such leave. Sixty-nine percent of survey respondents reported challenges in obtaining adequate notice from the employees of their need for FMLA leave, specifically including intermittent or reduced schedule leave, and thirty-one percent said they experience this problem often."[79]
Troy Cash from North Carolina State University College of Veterinary Medicine gives an example of exceptional abuse of FMLA and the hardship it caused. "A co-worker in my department, Ms. Patricia Hogan, was granted FMLA about three months ago after complaining of an off-duty back injury. Since that time she appears to have fully recovered, but continues to take liberal amounts of intermittent FMLA leave (usually conveniently taken on Fridays and Mondays to allow for 3-day weekends). She is in essence working part-time, receiving full-time benefits, and due to the FMLA crutch, her employer is not authorized to hire anyone into her position which is in dire need of a full-time, reliable employee to fill this one-deep position. Ms. Hogan's attendance record at N.C.State is deplorable and she has been on the verge of being terminated on numerous occasions for failure to report to work, sleeping on the job, etc. After more than 7 years employment, and with her leave balances in both vacation and sick leave categories exhausted, she embarked on further scamming the system by applying for and being granted FMLA. Now she merely has to say her back is hurting and regardless of the fact that she has no leave available, she's allowed to come and go as desired. I feel that she is receiving preferential treatment by the administrators here at the College of Veterinary Medicine to avoid terminating her employment and that her actions are a complete sham."[80]
An employee with Nebraska Furniture Mart of Omaha, Nebraska, gives an example of how another employee grossly misused the FMLA policy to conveniently shorten his work hours every month. "Here at Nebraska Furniture Mart we had a unique case in 2006. One of our employees contacted the Human Resources Department in January 2006 regarding FMLA coverage for his asthma. He has just met his one-year anniversary and was eligible for FMLA coverage. However, prior to his anniversary he had exhausted his paid time off (PTO) for his asthma condition. He had missed so much time that he was receiving disciplinary action per our attendance policy. He was advised by HR that he needed to obtain certification from his health care provider to be covered under FMLA. When HR did receive his certification it indicated that the time the employee could miss was "undetermined, but could be up to six days per month." Upon receiving this, HR was somewhat concerned. The reasoning was that the employee had already missed a lot of time due to the asthma condition and created a hardship for the company in terms of productivity. The amount of time indicated by the physician seemed unreasonable under the circumstances of already poor attendance and productivity. The employee was advised by HR to not take this as an invitation to miss six days each month. From that point on until December 2006 the employee did take six days of FMLA leave each and every month, at the beginning of each month, until coverage was exhausted. Since then, and until the time of this documentation (January 19, 2007), the employee has missed only one day of work. It is our belief that this was a 'chronic' health condition that didn't require an extensive amount of FMLA leave, if any at all, as asthma is a condition that can be and should be controlled by other means than just missing work for so many days a month. The other issue was that this employee took all six days of FMLA leave at the beginning of each month. Not sporadically during the month and not at a limited pace, it was always six days. This issue, obviously, was abuse on the employee's part because now, since his FMLA leave has been exhausted, he has had good attendance."[81]
Maryann Schaller of the Schaller Corporation provides an instance of how an employee uses FMLA leave in order to complete work in his other capacity as a farmer. "We also find our employees using this legislation as extra unpaid vacation time. It seems awfully coincidental that certain employees always take roughly the same time period off every year. An example would be an employee, who is also a farmer according to his co-workers, who typically has Family Medical Leave paperwork brought in during planting and harvesting months in our state."[82]
Christine Bogdan, an employee with Pleasant Holidays, LLC, illustrates how other employees misuse FMLA to avoid disciplinary action due to frequent unexcused absences. "We believe that intermittent FMLA is abused regularly. Employees who have a demonstrated poor attendance record and come close to termination will request an intermittent leave for a condition that has never been mentioned before. Most healthcare providers will check the appropriate box as a chronic condition requiring periodic treatments on the Health Care Provider Form."[83]
Jill Cook with Cummins, Inc., notices employees who conveniently take FMLA leave to extend weekends, as well as cover up tardiness, when they have otherwise used up all of their vacation/sick leave. "It has been our experience that some employees apply for FMLA leave, often for short-term illnesses, after their sick leave has been exhausted to avoid disciplinary action for attendance problems. We have also suspected abuse of the FMLA when there is an observable spike of FMLA leave on Mondays, Fridays and on the first day of deer hunting season.

"Compliance with the intermittent leave option has been exceptionally challenging because the regulation stipulates that leave may be taken in increments that correspond to the employer's payroll system. Our payroll system allows for increments as few as three minutes, and one facility had over 200 incidents of three minute FMLA uses in 2005. We strongly suspect that our incidents of three minute FMLA leave are used to excuse tardiness rather than true FMLA leave."[84]
Karen Zaugg from the University of Washington states that FMLA seems to be correlated with people who have performance-related problems. "All too often a reasonable person would perceive that employees can easily establish FMLA-covered intermittent leave when experiencing performance problems at work.

"Any supervisor or other management representative legitimately pursuing performance counseling or action finds the covered employee suddenly excused due to a migraine or breathing difficulty prompted by concern that performance is being addressed. If being at work is sometimes stressful and stress can have serious health consequences surely all persons who work for a living should have FMLA intermittent leave in force."[85]
Kathi Miller with the Milwaukee County Transit System concludes abuse of the FMLA when employees take days off for chronic illnesses but never display symptoms at work. "Because of the relative ease with which intermittent leave certification for a self-reported chronic condition can be procured as well as the ease with which such leave can be taken, employees can and do abuse the right to such leave. It is not at all uncommon, for example, for employees who consistently take full days off because of chronic conditions such as migraines or irritable bowel syndrome to never experience any symptoms whatsoever, on days that they work, which might preclude them from completing their shifts."[86]
John Aguine of Franklin County, Pennsylvania, states that some employees abuse FMLA to avoid disciplinary problems due to excessive absences. "It makes it more difficult for the employer to truly monitor attendance problems assome employees have turned to the protection the FMLA offers to guard them from abuse of the attendance policy. An example of this is we have employees who have an unknown medical condition until they have reached the number of occurrences that would result in a discipline. At that point, they apply for FML to protect themselves from the discipline. It is a fact that employees abuse the FML to be absent from work."[87]
Carol Svensen-Smith from The Resource Center explains that employees are abusing the certifications for care of family members. "We have had a fair bit of problems with the provision for intermittent FMLA for care of family member. One individual has been using 50-60 days each year for over two years for care of a parent with serious health condition. The doctor has stated that care includes psychological comfort, etc., and the employee will call off work for such needs as 'cleaning parents' house', 'helping with canning food', and other activities that could easily be done outside working hours. The last-minute calls for activities that need not be done during working hours has placed a substantial burden on the department. It would be helpful if regulations were tightened to diminish the potential for marginal use of FMLA time such as this. In this case, the other parent is well, living at home, and should have been able to attend to many of the needs for which the employee takes time, but we find no provision under the law by which this could be taken into consideration."[88]
Kelly Liligenquist explains that abuse of FMLA is nearly impossible to combat. "As a human resource professional for a large corporation, it is extremely difficult to track intermittent LOA and know that it is being abused because of the lack of authority to justify the need of the leave. We know abuse takes place because our associates tell us so. They tell us that once a physicians certification is received, it's basically a green light to use the leave as you choose. An employer basically has no right to question the validity of the leave once the certification is received with out the potential of litigation. For example, Monday-Friday call offs. If an employee says there is a legitimate need but how can the employer ask for proof? It is a publicly known fact that doctor shopping takes place until the certification is completed. There is extreme difficulty of pursuing disciplinary action once fraud is noticed and the legal ramification of the effort to investigate fraud again falls on the employer."[89]
JoAnn Shea from the Tampa GeneralHospital explains the abuse that takes place in the hospital. "Intermittent FMLA leave is difficult to manage in an acute care hospital setting and our hospital finds intermittent leave to be disruptive to our work environment. I estimate we have 50-75 employees at any one time abusing intermittent FMLA.

"Specific causes of concern include:

Employees calling in the last minute for chronic illnesses such as migraines, children's asthma, etc.

Employees calling in three or four times per month, especially before or after days/weekends off.

Employees calling in FMLA after being told they could not have a particular day off.

Employees applying for intermittent leave after being written up for attendance or tardiness

Employees calling in FMLA on holidays

Employees calling in FMLA for non-FMLA related reasons

Employees consistently coming in late or leaving early for 'FMLA' reasons

"Some examples of our FMLA issues:

1. Nurse in ICU calls in FMLA for depression. She tends to call in last minute and after her days off at least three or four times per month. Other staff have heard her say, I think I'll call in FMLA tonight. She works night shift and the other staff have to work short when other ICU nurses are not available.

2. Employee in our transfer center keeps getting migraines in the middle of the day and leaving early. Other staff have to take over her duties. She leaves early at least once per week and calls in FMLA at least twice per month.

3. NICU nurse calls in FMLA for chronic back pain. Her med cert states she could miss up to five days for each exacerbation. She calls in three to four days at a time. She is an experienced nurse and difficult to replace. Her manager is very frustrated as she has heard that she calls in when she is not really having any problems.

4. Respiratory Therapist, works 12 hour night shifts, calls in for fatigue 3-4 times per month after infusions from her hematologist. She refused to grant permission to contact her doctor. I find out that persons getting similar infusions don't usually miss work. It is difficult to staff the night shift and we hear she calls in just because she wants to work part time, but doesn't want to pay the higher health insurance costs that part time employees pay.

5. On Christmas Day, we have at least five employees call in FMLA. Staff who are assigned to work or asked to stay for an extra shift get understandably upset."[90]

Kim Riedlinger Wassim with North Dakota Society for Human Resource Management State Council explains that employers are "powerless" against abuse of FMLA by employees who, by their actions, cause staffing hardships and employee resentment. "A real world example submitted by a ND employer: A North-Dakota employer has a busy department among others, which contains only 11 employees. The employer trains employees of that department for six months to handle duties that include complex customer sales and representative calls. Due to the long training horizon, the employer finds it difficult to substitute temporary employees or employees from other departments.

"Of the 11 employees in the department, three experience migraine headaches and miss partial or full days of work with regular frequency. At times, all three workers have been absent on the same day and, unfortunately, some of the employees appear to use leave in place of planned vacation time or for conditions that do not qualify as serious health conditions. For example, one employee's absences fall disproportionately on Mondays.

"The employer pays overtime costs to coworkers to cover the unscheduled absences, but still the employer is often unable to meet work demands as a result of the absenteeism. Coworkers resent the employees on FMLA leave because the coworkers perceive the employees as receiving favorable treatment for substandard performance. In addition, the coworkers' share the employer's concerns that some of the employees take advantage of FMLA leave. The same employees who take FMLA leave for migraine headaches appear to take a significant amount of time off for other health problems as well, such as for colds and flu. These absences magnify resentment from coworkers who take little or no sick leave, and this employer spends a considerable amount of time preventing retaliation against the employees who do take FMLA leave.

"Although the employer has requested certification of healthcare provider forms to be completed by the medical providers, the forms do not assist the employer in anticipating staffing issues. The certifications state that migraines will be 'occasional, sometimes frequent, and ongoing.' This employer's experience has been that the leave may be required at the beginning or end of the day, for a full day or several days at a time. Usually the employees do not notify the employer in advance about the length of leave needed.

"The employer feels powerless to challenge potentially abused FMLA leave because of the short and unpredictable nature of FMLA leave for migraine headaches. In fact, one of the employees has never shown any lingering signs of illness following leave for a migraine. Short of a doctor's certification for every absence, the employer cannot verify FMLA abuses, and the Act limits recertification to no more often than every 30 days."[91]

Elizabeth Morin the Human Resources Director of Garrett Container Systems explains why they believe that employees are abusing FMLA. "I am the HR Director of a manufacturing company in Garrett County, Maryland. We employ 80 people, of which 70 work on the shop floor. Our most pressing problem with FMLA compliance has been with those who we believe have abused the law, in particular with intermittent leave. We have several diabetics, which we know is defined as a serious health condition. We have found that this has allowed them free reign of terror on the shop floor. Employees must be at his or her station to do the job so that production runs as scheduled and we get our products out on time. With several employees who have a condition which is defined as serious health condition, they have discovered they can decide they don't feel well, blame it on the condition, say they have to see a doctor and then they get the rest of the day off."[92]

Shellie Albright, an employee, notes obvious abuses of FMLA by