Adviser Winter 2019-20 LeadingAge New York Adviser LeadingAge NewYork Winter 2019-20 | Page 7

Curbing FMLA ...
(Continued from page 5)
After the investigatory meeting with Linette, her employer was convinced it needed to close
the loop on Linette’s church meeting, so it went right to the source: her minister. Linette’s
pastor sung like a church canary, as he eagerly confirmed that Linette had been attending
classes there every week for the past three months — all at a time when she should have been
at work. It turns out that Linette called in sick or used FMLA leave on these occasions.
The Conclusion
The dismissal of Linette’s FMLA lawsuit was a foregone conclusion. Indeed, the court
quickly disposed of her FMLA interference and retaliation claims, finding that Ma Bell
clearly had an honest suspicion or belief that she had abused FMLA leave on several
occasions, thereby supporting her termination.
FMLA and NYS Paid Family Leave (NYS PFL) protect
employees who are dealing with a serious health condition
or managing care for a loved one.
FMLA applies to private and public sector companies with
50 or more employees. NYS PFL applies to all NYS private
sector employers and those public sector employers who
elect to participate.
FMLA affords qualified individuals up to 12 weeks of
unpaid leave each year for family and medical reasons (26 weeks for taking care of a person
injured in battle) without the risk of losing their job. NYS PFL provides a job guarantee for
10 weeks of paid leave for 2020 and 12 weeks starting in 2021. This leave can be taken in
one lump sum (i.e., taken all at once) or be used intermittently (i.e., used as the need arises)
for both leaves. FMLA and NYS PFL must be taken concurrently and cannot be stacked.
It’s the latter situation, intermittent leave, that increases the prospects for FMLA and
NYS PFL leave abuse. In this article, we emphasize FMLA abuse, but the same strategies
may be used for NYS PFL.
What Is “FMLA Leave Abuse?”
Since FMLA leave may be used intermittently, it can be difficult to accurately track how
those 12 weeks are being spent. For instance, an employee may use some FMLA leave for
chemotherapy appointments or prenatal doctor visits—stretching their allotted time over
several months.
If you’re not careful, an employee using intermittent FMLA leave might abuse their allotted
time—for example, misleading you about why they’re taking time away from work or not
providing sufficient FMLA documentation, yet taking time off regardless.
What Does FMLA Leave Abuse Look Like?
While FMLA leave abuse is inherently tricky to identify, it most commonly happens when
FMLA leave is used intermittently. Here are some examples of what it may look like:
•
•
Taking FMLA leave without actually having a legitimate, qualifying reason
Falsifying health records to indicate FMLA compliance
Given the sensitive nature of FMLA leave abuse, it’s important to have an established system
for enforcing FMLA leave policies. This includes methods for curbing potential abuse.
(See Curbing FMLA on page 7)
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