Question:
We suspect one of our employees of using intermittent FMLA leave to cover her abuses.
We see a clear pattern. She takes leave two to three Mondays a month. Prior to her requesting FMLA leave, she claimed occasional sick days on Mondays. Other employees have noticed her leaving early on Fridays as well.
With this fact pattern and given the rumors now circulating, may we start asking her to bring doctor’s notes each week to justify her need for Monday leave?
Answer:
While a Monday absence pattern may indicate alcoholism, you can wind up in legal hot water if you ask for weekly doctor’s notes from an employee using intermittent Family Medical Leave. In a landmark case, Oak Harbor Freight Lines v. Antti, the employer suspected that employee Antti used FMLA leave to cover weekend drinking. Ninety-four percent of Antti’s absences fell on Mondays, Fridays, or days adjacent to holidays.
The employer asked Antti to bring weekly doctor’s notes. Antti sued, claiming an FMLA violation. The U.S. District Court ruled in Antti’s favor, noting that once an employer receives the “complete and sufficient” medical certification needed to qualify for FMLA certification, it may not request additional information from the health care provider unless it requests a recertification.
Recertification requests can’t be made weekly and need to be made on a “reasonable” basis, “no more than once every thirty days” and only in connection with an employee’s absence. You can read these regulations at http://www.dol.gov/whd/regs/compliance.
Here’s what you can do as an employer: If it’s been more than 30 days since the original certification, you can ask for recertification. Provide your employee’s leave pattern to the physician. Your employee’s physician may read the situation as you do and address the real problem.
(c) 2022 Lynne Curry
You may find these other articles on alcoholism useful, https://workplacecoachblog.com/2019/06/qa-what-do-i-do-if-my-boss-is-a-functional-alcoholic/; https://workplacecoachblog.com/2021/03/alcoholic-manager-slams-into-anothers-car-can-his-employer-continue-ignoring-the-situation/ and https://workplacecoachblog.com/2021/03/drunken-manager-shut-down-our-zoom-call/.
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Patterned absences and the balance of protection by the need to warn and ask for proof only with recertification or the need to get the physician on board are tipping points here. Alcoholics often know how to use others’ perceptions and established systems to cover their behavior. You can hope the physician will see the pattern, too, and talk to the patient/employee about it, but not all physicians are that well versed on what constitutes alcoholism, and even fewer may actually have any training or ideas about how to handle it and refer for treatment. And of course, there’s the “ya gotta wanna” problem: if the person presenting alcoholism doesn’t want to see it or do anything about it, nothing will get done about it. There often are many failed attempts at treatment and many relapses before the person is able to stop the behavior.