Honest Belief of FMLA Abuse Is Enough to Fire Someone
Abuse of intermittent Family and Medical Leave Act (FMLA) time off is frustratingly common, but employers need not tolerate it. If they have an honest belief or suspicion of abuse, that’s enough to take action against an employee, said Matt Morris, vice president of FMLASource, a ComPsych Corp. program in Chicago, at the 2018 Society for Human Resource Management Employment Law & Legislative Conference on March 13.
One of the advantages of the honest-belief doctrine is that it circumvents often ineffective and expensive FMLA mechanisms to challenge leave, such as recertifications and second or third opinions, Morris said.
Morris gave a few practical tips for employing the honest-belief doctrine:
Know where the employee works. The circuit court where the employee works is “extraordinarily important,” since application of the standard varies widely among circuits.
Conduct an investigation, regardless of what the employer has heard or seen. Skipping an investigation can result in the employer losing a case.
Talk with the employee about the suspicions. Ask the employee what happened and document the discussion, including whether the employee admits to some FMLA misuse. Even if the employee says the FMLA wasn’t abused, the employer still may have an honest belief that it was. But the worker may persuade HR that the suspicions were mistaken.
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