By Martha J. Cardi, Reed Group Chief Compliance Officer
In the aftermath of natural disasters, employers may see a flood of requests for FMLA leave.
While compassion may call for establishing policy on time off for post-disaster clean-up, curbing FMLA abuse while staying in compliance with leave laws is important for both employers and their workforces.
Here are two potential areas employers should watch for potential FMLA abuse:
Pre-existing Intermittent Leave — Employees with chronic health conditions may take intermittent FMLA leave. If an employee already is approved for intermittent leave for a hard-to-verify condition such as a nervous disorder, migraines or back pain, he or she may try to use FMLA leave for flood damage or other home repairs.
Caring for a Family Member — Employees may take FMLA leave to care for a family member, but only as it relates to the family member’s personal care, such as bathing, transporting them to doctor appointments or fixing meals. FMLA does not provide leave for home cleaning and maintenance. Therefore, if an employee requests FMLA leave to deal with a parent’s flooded basement or to meet a repair crew at the parent’s house, these would not be covered under FMLA.
Court Rejects Flooded Basement For FMLA Leave
When Joe Lane, an employee of Pontiac Osteopathic Hospital on intermittent FMLA leave to care for his aging mother tried to claim flood clean-up of his mother’s basement as FMLA leave, the federal district court in Lane v. Pontiac Osteopathic Hospital rejected his FMLA interference claim on several grounds, one of which was that Mr. Lane did not present sufficient evidence that cleaning his mother’s basement met the definition of “caring for” a family member with a serious health condition.
What Should Employers Do?
While in most cases, employers have to take the employee’s word that the absence is justified, Reed Group experts find that practicing “appropriate and active oversight” tends to discourage FMLA abuse because employees who are not taking legitimate leave know they are being watched.
When the employee requests FMLA leave, try to verify the exact reason for the leave. If the employee says it’s for a doctor’s appointment, the employer may call the doctor’s office to verify that the employee appeared for the appointment, but may not request any additional medical information.
Post-Irene Situations that Warrant FMLA Leave
Be aware that there are many situations in which Irene’s aftermath may spur legitimate FMLA leave. The following are all examples in which leave should be granted:
- An employee with an existing nervous or stress disorder might have his or her condition exacerbated by the hurricane experience and need time off to recover.
- An employee with a bad back or other physical ailment might need FMLA time because of aggravating the condition while cleaning up after the hurricane.
- An employee with FMLA leave to care for a parent might need time because the hurricane cut power to the parent’s oxygen tank (requiring him or her to move the parent temporarily) or cut power to the parent’s refrigerator (requiring him or her to bring the parent staples or fresh food) or because Irene caused the parent to lose water service (requiring the employee bring the parent bottled water).
- An employee might have received a new injury during the hurricane or during the clean-up, which qualifies as a serious health condition and justifies time off after the fact.
Curbing FMLA Abuse May Benefit the Employee
In post-disaster situations it may be tempting to ease up on curbing FMLA abuse, but remember, FMLA leave is limited. If the employee abusing FMLA today needs it legitimately in the future, he or she may have exhausted benefits when they legitimately need them most.
Don’t Forget State FML and Other Leaves
FMLA and other leave laws can be a bewildering patchwork. Be sure to consider all FML leaves when evaluating post-Irene requests.
If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws.