Curbing FMLA Abuse: How to Manage Manipulative Employees

James K. Cowan, Jr.Eric D. ChapmanBrian S. Wheeler

540.443.2850 (office)[email protected]

[email protected]@cowanperry.com

Curbing FMLA Abuse:How to Manage Manipulative Employees

Presented to: LORMAN

mailto:[email protected]



Coverage and Eligibility

Employer Obligations

Employee Obligations

Key Definitions to Know

Back to Basics – A Quick Summary

of the Statute

1. Covered Employer = The FMLA covers private

employers with 50 or more employees (part-

time and temporary employees count) for each

working day during each of twenty or more

calendar workweeks in either the current or

preceding calendar year. Virtually any person

or business entity, regardless of form, that

affects commerce in any way and has the

requisite number of employees is subject to this

Act. No comparable Virginia law.

Coverage & Eligibility

2. Eligible Employee = worked at least 12

months (the 12 months need not be

consecutive) and 1,250 hours in 12

months before leave starts. Also, the

employee must work at a site where 50 or

more employees are employed by the

employer within 75 miles of that work site.

Practice tip: Don’t forget to monitor hours

for heavy intermittent leave users.


3. Serious Health Condition = hospitalization or continuing medical treatment.

4. Leave = 12 weeks of unpaid leave for the employee's SHC; or SHC of spouse, child, stepchild, or parent; or birth, adoption or placement of a foster child; or qualifying exigency. 26 weeks unpaid leave for covered service member with serious injury or illness. Leave given to both men and women. Keep health coverage under same conditions as if employee not on leave.


5. Return to Work Rights = Employer can require a fitness-for-duty certification. If employee cannot perform the essential functions of the job at the end of the FMLA leave, the employer can fire them if there are no ADA issues. At the conclusion of FMLA leave, an employee is entitled to be returned to the same position he or she held when leave commenced. If the position is unavailable, the employee is entitled to an "equivalent position" with equivalent pay, benefits and other terms and conditions.



• Foreseeable Leave: If the need for leave is

foreseeable, employee must give at least 30

days notice. Ask, “”when did you schedule

this procedure or appointment…”» If 30 days notice has been given, the employee

should provide the certification before the leave

begins.

• If 30 days is not possible, then notice as soon

as practicable. This is usually 1-2 business

days but it is flexible depending on the facts.

• Unforeseeable Leave: Notice as soon as practicable. This generally means the employee must comply with the employer’s usual and customary notice requirements for leave. 825.303.

– Example: Employer’s policy may require employees to provide verbal or written notification to direct supervisor 2 hours in advance of the employee’s scheduled start time where the leave was unforeseeable.

• If an employee does not comply with the employer’s usual notice and procedural requirements, and there are no unusual circumstances, FMLA leave may be delayed or denied.

• BUT if the employer has no established policy regarding notice for unforeseeable leave, the employee may give any verbal or other notice as soon as practicable. So, establish a policy.



• Content of Notice: The employee must provide enough information so the employer can determine if the leave is FMLA-qualifying leave and the time and duration of that leave. Notice can be in person or on the phone. Notice can be by an employee’s spokesperson.

• Employees are required to consult with the employer when planning medical treatment so the leave will not unduly disrupt the employer’s operations.

• If the employee fails to give 30 days notice for foreseeable leave with no reasonable excuse, the employer can deny FMLA leave for at least 30 days after getting notice from the employee. In order to delay an employee’s leave for failure to give notice, the employer must make sure that the employee had notice of the requirements. 825.304


• Employees Asserting FMLA Rights: The first time an

employee requests leave for a FMLA reason, no need to

expressly assert rights under FMLA.

• But if an employee seeks leave for a FMLA-qualifying

reason and the employer has already provided the

employee with FMLA leave for that same reason, the

employee must specifically assert the qualifying reason or

the need for FMLA leave.


• Serious Health Condition--29 CFR 825.113 - It’s an

illness, injury, impairment, or physical or mental

condition that involves:

– Inpatient care (an overnight stay in a hospital,

hospice, or residential medical care facility),

including any period of incapacity, or any

subsequent treatment related to the condition that

caused the inpatient care (825.114); OR

– Continuing treatment by a health care provider

(825.115), which includes:


• A period of incapacity that lasts more than three

calendar days, combined with:

– Treatment two or more times by a health care

provider (i.e., in-person visits, the first within 7 days

and both within 30 days of the first day of

incapacity); or

– One treatment by a health care provider (i.e., in-

person visit within 7 days of first day of incapacity)

with a continuing regimen of treatment (e.g.,

prescription medication, physical therapy); or

• Any period of incapacity related to pregnancy or for

prenatal care [a visit to a health care provider is not

necessary for each absence]; or


• Any period of incapacity or treatment for a chronic SHC which: (i) continues over an extended period of time (including recurring episodes of a single underlying condition); (ii) requires periodic visits (at least twice a year) to a health care provider; and (iii) may involve occasional episodes of incapacity [a visit to a health care provider is not necessary for each absence – e.g., asthma, epilepsy, diabetes]; or

• A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective [only supervision by a health care provider is required, rather than active treatment – e.g., Alzheimer’s, severe stroke, terminal stages of a disease]; or


• Any period of absence to receive multiple treatments

(including periods for recovery) for restorative surgery

after an accident or injury or for a condition that would

likely result in a period of incapacity of more than three

consecutive calendar days in the absence of treatment

(chemo, radiation, dialysis, etc.).

• “Incapacity” means inability to work, attend school or

perform other regular daily activities due to the serious

health condition, treatment for the SHC, or recovery

from the SHC.

Best Practices in Managing

FMLA Leave

Certifications, Clarification and Recertification

Paid and Unpaid Leave, Stacking the Deck

Foreseeability, Intermittent Leave and Reduced Scheduling

Interplay Between FMLA, ADA and Worker’s Compensation Leaves

Certifications, Clarifications and

Recertification

1. Certificationsa) Certifications can be required for the

employee’s SHC or the SHC of a spouse, son, daughter or parent. Can also be required for a Qualifying Exigency or covered service member's serious injury or illness.

b) Employer must give written notice (usually within 5 business days of learning of the need for FMLA leave) that certifications are required. The employer should also give the employee notice of the consequences for not providing an adequate certification.

1) May request certification later if there is reason to question the appropriateness of the leave or the duration.


Recertification

c) The employer must allow at least 15 calendar days for the employee to get the medical certification back, unless not practicable despite the employee’s diligent, good faith efforts.

d) The certification must be complete and sufficient. If it is not, the employer should state in writing the additional information needed. The employee then has 7 calendar days (unless not practicable) to fix the certification. If the certification is still deficient, the employer can deny FMLA leave. But the employer must give the employee notice of the consequences of providing inadequate certification.

e) The DOL has provided certification forms that have all the information needed.


Recertification

2. Employers Questioning Medical Certifications--29 CFR 825.307

a) A complete certification signed by a healthcare provider prevents an employer from asking for additional medical information at that time. However, the employer can contact the employee’s healthcare provider, with permission from the employee, to clarify issues and to authenticate the certification.

1. The employer’s direct supervisor may not contact the employee’s health care provider.It must be a HR professional, a health care provider, etc.


Recertification

b) Second opinions: If the employer doubts the

validity of the certification, then a 2nd opinion

can be obtained. It is paid for by the employer.

The employer can designate the healthcare

provider, but it cannot be the employer’s

usual healthcare provider. There is an

exception and that is when health care is in an

area that has limited providers (rural areas

usually). The employer also must reimburse

for out of pocket travel expenses for the 2nd

and 3rd opinions.


Recertification

c) Third opinions: The employer can also seek

a 3rd opinion at the employer’s expense.

This 3rd opinion is binding. The 3rd healthcare

provider must be approved by both the

employee and the employer. If the employer

and employee don’t use good faith to arrive

at a 3rd provider, then the one that acts in bad

faith will be bound by the certification of the

other.


Recertification

3. Recertifications of Medical Conditions—29 CFR 825.308

a) Recertifications no more frequently than every 30 days (or longer period set by physician in certification) for pregnancy, chronic, or permanent/long-term conditions under continuing supervision of a healthcare provider, unless:

• Circumstances have significantly changed; or

• There is information that casts doubt on the employee’s reason for leave. The Friday -Monday absence pattern can be information that casts doubt and allow recertification more frequently than every 30 days. You can put this question on the certification form. Opinion Letter from the Administrator--5/25/04.


Recertification

b) Intermittent leave or leave on a reduced schedule:

Where the intermittent or reduced schedule leave

requested is in excess of six months, an

employer may request recertification every six

months in connection with an employee’s

absence.”

c) The recertifications must be done within 15 days from

the employer’s request unless there are

circumstances that don’t allow it and the employee

tries in good faith. The employee must pay for the

recertification unless the employer decides otherwise.


Recertification

• Qualifying Exigency Certification – 825.309– Employer may require an employee requesting leave

due to a qualifying exigency to provide the covered military member’s active duty orders or other documentation indicating active duty status. Only need to provide this information once for all leave arising out of the same active duty status.

– Employer may require a certification of the qualifying exigency (i.e., description of the situation; date –beginning and end dates; etc.) – DOL has a form with all the required information.

– Employer cannot request additional information if certification is compete, except contacting 3rd parties regarding meetings and contacting the Dep’t of Defense to verify active duty status.

Paid and Unpaid Leave,

Stacking the Deck

• When paid leave can be used:

– Generally, FMLA is unpaid. There is no requirement

under federal law that FMLA be paid.

– The employee may choose to use paid time off

(defined as accrued paid vacation, personal leave,

paid family leave), and

– The employer may require the employee to use

accrued paid leave. You can have a rule that

requires this for intermittent leave.

– An employee who chooses to substitute paid leave

must follow the employer’s paid leave policies with

respect to use of that leave.

Foreseeability, Intermittent Leave

and Reduced Scheduling

• Intermittent or reduced leave schedule:

– In order for an employee to get intermittent

leave or a reduced leave schedule after the

birth or placement of a child for adoption or

foster care, the employer has to be willing to

agree to it. If the employer does not want to

allow it, the leave does not happen.

– No employer agreement needed if the leave is

for the SHC of the mother in connection with

the birth or if a newborn has a SHC.



– Intermittent or reduced leave schedule when medically

necessary for planned or unanticipated medical treatment for

a SHC or for recovery from a SHC. This is also allowed to

provide care or psychological comfort to an immediate family

member with a SHC. This can be leave of 1 hour or more.

– Intermittent or reduced leave schedule allowed for leave due

to a qualifying exigency.

– “Medical necessity” for intermittent leave requires a

medical condition that can best be treated during intermittent

leave. Key is that employees must schedule intermittent

leave so as not to disrupt the employer’s operations. (29

CFR 825.202)

• You need to require this…



• Employers must account for intermittent or reduced schedule leave using increments no greater than the shortest period of time the employer uses to account for other leave, provided it is not greater than one hour.

• Employee’s leave entitlement may not be reduced by more than the amount of leave actually taken.

• Where it is physically impossible for an employee to start or end work mid-way through a shift, the entire period that the employee is absent is FMLA leave and counts against the employee’s FMLA entitlement. (825.205(a)(2)).

– Example: Where a flight attendant is scheduled to work aboard an airplane, he/she cannot commence working halfway through a shift, when the plane is in the air.



• Overtime – 825.205(c): If an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement.– In this case, treat the employee as using intermittent or

reduced schedule leave.

• Voluntary overtime hours that an employee cannot work because of a serious health condition may not be counted against the employee’s FMLA entitlement.

Interplay Between FMLA, ADA and

Workers’ Compensation Leaves

• FMLA– The FMLA applies to any company that has employed 50 or

more employees within a 75 mile radius of any of its worksites for at least 20 weeks during the current or preceding calendar year.

• ADA– Title 1 of the ADA, which contains the Acts employment

provisions, applies to employers who employed 15 or more employees for 20 weeks during the current or preceding calendar year.

• WORKERS' COMP– WORKERS' comp applies to almost all employers, even those

that are very small. The courts apply a “common law”employer standard.



• FMLA and Workers’ Compensation may run concurrently – but you must advise employee of this

• ADA – potential right to additional unpaid leave after exhaustion of FMLA leave.

• Workers’ Compensation and requiring light duty.



• FMLA– A private cause of action.

– Penalties include reinstatement; lost wages, salary, employment benefits, or other compensation (if employee did not lose any of these, they may still recover any actual monetary losses sustained as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of pay for the employee); interest.

– If you can’t prove good faith, the award is doubled as “liquidated damages.”

– A prevailing employee will also be awarded attorney’s fees and costs.



• ADA

– The EEOC or the employee may sue.

– Penalties include reinstatement, back pay, compensatory damages (for humiliation and mental anguish).

– A prevailing employee will also be awarded attorney’s fees and costs.

– Punitive and compensatory damages are available, but are capped, based upon the size of the company

• Workers’ Compensation

– The primary potential for employer liability (beyond the statutory benefits) arises as a result of “retaliatory discharge,”claims that the employee was terminated for filing a workers' comp claim.

Strategies for Controlling Intermittent

and Reduced Schedule Leave

Transfers and Related Scheduling Changes to Accommodate intermittent Leave

Recommended Changes to Your Leave and Notice Policies

Investigation and Discipline of Fraudulent FMLA Use

Managing Risk – The Floodgate Effect vs. Sending a Message

Case Studies

Transfers and Related Scheduling Changes

to Accommodate Intermittent Leave

• Transfer to accommodate intermittent leave or reduced leave schedule:– The employer can require the employee to transfer

temporarily to an alternate position that better accommodates the schedule for the employer.

– The alternate position must have equivalent pay and benefits. However, the duties don’t need to be equivalent.

– May not transfer just to discourage employee from taking leave or otherwise cause hardship to the employee.

Recommended Changes to Your Leave

and Notice Policies

• Require Certification Via a “Certification of Health Care Provider” Or Similar Form

• Require a Complete Certification, Rejecting Answers Including Terms Such As “Unknown,” “As Needed,”“Lifetime,” Or “Indefinite”

• Maintain A Rule Requiring Employees To Call in Advance Of Their Shifts If They Are Going To Be Absent

• Require Substitution Of Vacation And Other Paid Leave For Unpaid FMLA Leave

Recommended Changes to Your Leave

and Notice Policies

• Engage A Health Care Provider To Obtain Clarification Of Certifications

• Use Second Opinions Where Helpful

• Require Recertification

• Investigate And Discipline An Employee For Fraudulently Using FMLA Leave

• Use Surveillance When Necessary

• Consider Transferring An Employee To An “Alternate Position”To Better Accommodate Intermittent Leave Or Reduced-Leave Schedule

Investigation & Discipline of

Fraudulent FMLA Use

• One of the biggest problems facing employers today

• Once certified, an employee can call in with flare-ups and can take up to 12 weeks intermittent leave every 12 months:– On a daily, partial day, or hourly (or less) basis,

– Without certifying the need for each instance of leave (and employer may not request such certification), and

– Without needing to receive treatment from a healthcare provider

Investigation & Discipline of

Fraudulent FMLA Use

• Common Issues in Managing Intermittent or Reduced-Schedule Leave – Late or Inadequate Notification– Incomplete Certifications– Suspicious Claims

• Courts are starting to notice what employers have known for years: that employees “play the system,” and have begun to consider this burden on employers

Managing Risk – The Floodgate Effect

vs. Sending a Message

• If you don’t manage leave it will be abused, people will notice, and suddenly people will be able to catch a migraine….

• But, being too aggressive, if not closely monitoring the statue exposes you to retaliation claims.

• There is a middle ground…

Case Studies

Leading case: Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir. 2001).

• Employee’s physician asserted depression caused employee to be incapacitated 10 –20% of the time, episodes may occur without warning.

• Court said, if true, this may render her unqualified for the position.

Case Studies

In a deposition Dr. Ronald K. Leonard testified that Collins is incapacitated by depression between 10% and 20% of the time, and that episodes may occur without warning. If this is so then it is doubtful that the Act has much to offer Collins. Courts have been reluctant to read the FMLA as allowing unscheduled and unpredictable, but cumulatively substantial, absences, when the Americans with Disabilities Act protects only persons who over the long run are capable of working full time. Collins is not suffering from an acute condition that will improve with time off; instead she asserts a right to take unscheduled leave at a moment's notice for the rest of her life. This implies that she is not qualified for a position where reliable attendance is a bona fide requirement...

Case Studies

• Andrews v. CSX Transp., Inc., 2009 WL 5176462 (M.D. Fla. 2009)– The employee failed to demonstrate that she was prejudiced or injured by

the employer’s practice of deducting FMLA leave time for the employee’s unworked overtime.

• The employer had discontinued its practice of docking unworked overtime and the employee never exhausted her available FMLA leave, was never denied FMLA leave to which was entitled, and did not suffer any economic loss or injury.

• Beekman v. Nestle Purina Petcare Co., 635 F. Supp.2d 893 (N.D. Iowa 2009)- Court found that when taking intermittent leave for medical treatment, an

employee “shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate.” 635 F. Supp. 2d, at 912-13 (quoting 29 U.S.C. §2612(e)(2)(A).

Case Studies

• Bacon v. Hennepin Cnty Med. Ctr., 550 F. 3d 711, 716 (8th Cir. 2008)- Bacon would suffer from hives while at work. When an incident occurred, she

would call her employer every day she was scheduled to work to report that she would not be coming in, and her absences were recorded as FMLA leave.

- Eventually, Bacon stopped calling. She asserts that her supervisor told her she no longer needed to call in her absences every day.

- The court reasoned that Bacon “must substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff’s favor.” Davidson & Assoc. V. Jung, 422 F. 3d 630, 638 (8th Cir. 2005)

- The court found that “it is impossible to believe that an employee with a large financial incentive to prove that she had not been fired for misconduct would not clearly and specifically protest that she had been fired for conduct that had been explicitly authorized by her supervisor.” Bacon, 550 F. 3d at 716.

Case Studies

• Jaszczyszyn v. Advantage Health Physician Network, 540 F. App’s 440, 443 (6th Cir. 2012)

- Jaszczyszyn would suffer from pain that prevented her from coming to work. She would provide her supervisor with notice each day by leaving voicemails late at night or on the weekend, when no one would be at work.

- During one weekend, she attended Pulaski Days, a local Polish heritage festival. One of her friends shared pictures of the event, 9 of which featured Jaszczyszyn. At some point during the same weekend, she left her employer multiple voicemails indicating that she was in pain, would not be attending work on Monday.

- Several of her co-workers then saw the pictures of the event and brought it up to their supervisors.

- In a meeting concerning her employment, Jaszczyszyn did not agree with their characterization of the pictures, but she did not voice that disagreement at the meeting. She defended her actions by arguing that no one told her she couldn’t attend the festival. When asked to explain the discrepancy between her claim of complete incapacitation and her activity in the photos, she did not have a response and was often silent, occasionally saying that she was in pain at the festival and just was not showing it.

- Jaszczszyn’s employer terminated her for fraud. The court affirmed the lower court’s summary judgment in favor of her employer.

Case Studies

• Tillman v. Ohio Bell Telephone, 545 F. App'x 340 (6th Cir. 2013)- Tillman worked as a Communications Specialist and his work required him to perform

maintenance work, including lifting up to 100 pounds and climbing ladders. Additionally, he was frequently required to work nights and weekends due to his low seniority within the union.

- In 2006, Tillman was diagnosed with lumbar degenerative, which caused him exacerbated pain two to three days a month. As a result, Tillman was granted intermittent leave under the FMLA.

- The Company, however, began to notice a pattern in Tillman’s FMLA leave, including: (1) he provided advance notification to his supervisor of when he intended to use FMLA leave; (2) the leave frequently fell on Saturdays; and (3) he stated that “[i]f [he] end up on evenings due to seniority, I’m letting you know in advance I will be using an FMLA day on [Saturday].”

- Because of these indicators, the Company hired a private investigator to conduct video surveillance. The investigator observed Tillman working in his garage, bending down and lifting pieces of wood trim, and then transporting them from the garage to the house several times.

- The company presented the video surveillance to a physician, who opined that Tillman’s activity was inconsistent with the “physical behaviors typical of someone with incapacitating back pain” and that Tillman was not incapacitated from performing his work duties.

- Based on this evidence and the doctor’s opinion, the Company fired Tillman and the Court awarded summary judgment to the Company, noting the FMLA “it does not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed decision.”

Case Studies

• Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012).• In 2006, Carrier Corporation set out to remedy an excessive employee absenteeism

problem that had developed at its manufacturing plant. As part of its plan, Carrier hired a private investigator to follow approximately thirty-five employees who were suspected of abusing the company's leave policies.

• One of these employees was Daryl Scruggs, who was authorized to take intermittent leave under the FMLA to care for his mother in a nursing home.

• After surveillance revealed that Scruggs never left his home on a day he requested FMLA leave, Carrier suspended Scruggs pending further investigation.

• Scruggs submitted several documents to demonstrate that he picked up his mother from the nursing home on that day and took her to a doctor's appointment, but the documents were inconsistent and Carrier suspected Scruggs had abused his FMLA leave. Accordingly, Carrier terminated Scruggs for misusing his FMLA and Scruggs sued.

• Finding in favor of the Company, the Court found that the evidence “was enough for Carrier to have an ‘honest suspicion’ that Scruggs misused his FMLA . . . and although Carrier could have conducted a more thorough investigation, it was not required to do so.” Id. at 826.

Case Studies

Three FMLA cases dealing with employees who have “no overtime” work hour restrictions:

• Werner v. Nott Co., 2013 WL 2443867 (D.Minn. June 5, 2013)- Under the FMLA claim, Werner alleged that Nott interfered with her FMLA rights by

discouraging her from exercising her right to medical leave due to her multiple sclerosis.

- Court found that the type of leave that may be taken is not limited to a “leave of absence. . . It may also include an ‘intermittent leave’ or a ‘reduced leave’ schedule.” Verhoff v. Time Warner Cable, Inc., 299 F. App’s 488, 495-96 (6th Cir. 2008) (concluding that plaintiff established a prima facie case for FMLA interference by presenting a doctor’s note indicating that he should not work more than forty hours per week.)

- But, in Tardie v. Rehabilitiation Hosp. of Rhode Island, 68 F.3d 538 (1st Cir. 1999). The Court found that working more than forty hours per week was an essential function of HR Manager’s position and doctor’s restriction to less than forty hours per week meant Plaintiff was incapable of performing the essential functions of her position. Judgment for Company.

The End Game

Return to Work issues

Termination of Employees While on FMLA Leave

Develop a Checklist for Making the Termination Decision; and Reviewing for Compliance.

Return to Work Issues

• Designation Notice should tell the employee whether fitness-for-duty certification will be required and whether it will address essential functions of the job.

• Employer cannot get fitness-for-duty certification for each absence taken for intermittent leave. BUT an employer may get a fitness-for-duty certification for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his/her duties. If employer chooses to do this, the employee should be notified in the Designation Notice. Reasonable safety concerns = reasonable belief of significant risk of harm to the employee or others. (825.312(f))


1. Return to Work Requirements

a) Employees can be required to check in with the

employer while out on leave so the employer

can determine the employee’s status and

when he/she is coming back to work.

b) Employees who provide the employer with a

notice of an intent not to return to work then

the requirement to maintain health benefits and

to restore the employee to his/her job ends.


c) Fitness-for-duty certifications - employers that have these for other types of leave can have them for FMLA leave.

• This report can only be requested as to the health condition that caused FMLA leave. The cost must be paid by the employee and the employer does not have to pay time or travel costs.

• AN EMPLOYER CAN DELAY RESTORATION TO THE JOB UNTIL THE EMPLOYEE GETS THE FITNESS-FOR-DUTY CERTIFICATION AS LONG AS THE EMPLOYER PROVIDED NOTICE TO THE EMPLOYEE AT THE BEGINNING OF LEAVE. 825.312.


d) Employees can be required to report periodically on the employee’s status and intention to return to work.

e) Must follow ADA requirements – after returning from FMLA leave, ADA requires any medical examination at the employer’s expense be job-related and consistent with business necessity (e.g., no medical examination for leg amputee with a desk job).

f) Employers can maintain uniform policies governing outside or supplemental employment (i.e. moonlighting) and prevent reinstatement to the employee on FMLA leave who works another job. However, if there is no such policy, then there cannot be a denial of reinstatement.

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AND GOOD LUCK OUT THERE!

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Curbing FMLA Abuse: How to Manage Manipulative Employees

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Transcript of Curbing FMLA Abuse: How to Manage Manipulative Employees