Faking Illness to Avoid Shift, Quirky Question # 47

Quirky Question # 47:

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

Dorsey’s Analysis:

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

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

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

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

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

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

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

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

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

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

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

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

Supplement to Analysis of QQ # 47

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

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

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

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

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

Donating Sick Leave, Quirky Question #2

Quirky Question # 2:

One of our employees is quite ill, with a very serious illness.  She has used up all of her sick time.  She is well liked and several of her co-workers want to donate all of their sick time to her.  Are there any downsides to allowing these employees to donate their sick time?  Are there any downsides to disallowing these sick time donations?

Dorsey’s Analysis:

Proposed donations of sick time constitute a magnanimous gesture and are to be commended. But they raise a number of potential problems for the employer that should be considered before the sick-leave donations are approved. Set forth below are five questions an employer should consider when evaluating these types of requests. Like many employment issues, it is far better to think these issues through in advance, rather than addressing them only after a specific situation (and corresponding potential problems) have arisen.

First, what will the employer do if one of the employees who has donated all of his/her sick time also becomes ill or is in an accident? Will the employer simply insist that the sick time has been used up and force the employee to take a leave without compensation? How long might this unpaid leave last before the absences would affect the employee’s continued employment?

Second, as one of the Reader Responses reflected, you need to examine whether any employees are being pressured into “donating” their sick time by friends of the employee who is ill? What if the employee who “encouraged” others to donate their sick leave is a manager? Someone with hiring/firing responsibility? If an employee did not agree to “donate” his/her sick time, would their be any adverse consequences for that employee?

Third, what if the employee who is sick is herself a manager with disciplinary authority, or hiring and firing authority? Would employees being requested to “donate” sick-leave time to this individual feel comfortable rejecting this request?

Fourth, what precedent is the company establishing with regard to the Americans With Disabilities Act? That federal statute requires, in certain circumstances, that employers make “reasonable accommodations” to individuals with disabilities, assuming that the employers can do so without suffering an “undue hardship.” Would the additional leave provided to the sick employee be compelling evidence by a disabled employee in a similar job that allowing someone in this position additional compensated time off was a “reasonable accommodation” that did not cause the employer an “undue hardship?”

Fifth, is the employer creating risks for discrimination litigation if another employee also becomes ill, uses all her sick time, and then turns to the company to obtain additional sick leave from her co-workers? What if the company approved the extended leave for the first employee (based on the donated time from other employees) but, for valid reasons, rejected the extended leave opportunity for the second employee, who happened to fall into a protected class?

The motivations underlying the sick time donation idea are admirable. Perhaps the company will conclude that regardless of the potential for some of the types of problems identified above, those risks are outweighed by the generous and compassionate attitudes and behaviors being fostered by the sick-leave donations. But, an employer should be aware that this approach may lead to potential problems. These problems should be considered in advance, before they actually arise, so that the employer and the employees alike know how alternative situations will be handled. When these issues are considered carefully, the company may find that an alternative approach is preferable, perhaps by assisting the employee through the already existing short-term or long-term disability programs available at the company.

Readers’ Responses:

Response # 1: Why wouldn’t you want to encourage employees to help each other?

Response # 2: On the surface, leave donation appears to be a great idea and they appeal to a great many. However, such programs breed ill feelings over the long haul. When you allow employees to donate leave, many develop the expectation that sometime in the future, it will be returned when needed. This is rarely the case and hence, the ill feelings start to develop.

Without intention, employees often experience undue pressure to donate, even when they don’t want to. It is similar to the feelings of a United Way campaign. The intentions are good; however, some employees believe in donating in other ways and can feel pressure from peers and supervisors to donate.

There are also the situations where employees abuse their leave, then find themselves in a position of needing more leave, so again employees may feel pressure to donate leave even though the employee could have avoided the situation by being more responsible.

Finally, there is the fairness issue. Who will be in charge of requesting donations and will the vigor in solicitation be the same for everyone?

As you can tell from my reasons listed, I have always been against leave donation programs. However, to ensure an individual is not left out in the cold, short-term and long-term disability plans should be considered and added to the benefits plan. These programs are one of the tools that can be used to keep ill feelings out of the workplace.

Response # 3: My experience with sick leave donations is that they create a nightmare issue for the tax folks in the payroll deparment. There are tax issues relating to passing along sick days and other paid vacation days from one employee to another. This illustrates another reason why our company will not allow these types of leave donations.