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Calif-Suspected intermittent FMLA abuse California

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  • Calif-Suspected intermittent FMLA abuse California

    Hello,

    I have an EE that has a valid intermittent FMLA claim on file for a parent. I don't doubt the claim itself, but the parent lives out of state and the only time the EE uses the time off is when they are required to work OT or be On Call. I have talked with my local HR department who said asking for verification after the claim is approved is not allowed. We also use a third party agency for leave verification. What can I tell my HR department? It seems like we should be able to ask for a plane ticket or something to verify they actually used the time off to care for the parent. I know I can't ask anything as the direct supervisor but I have heard from other EE's that they know this person is not using the time off correctly.

    Thanks
    The Frustrated Supervisor

  • #2
    There are a couple of things that your company can do. You can require re-certification of the need for leave every 30 days. This would certainly let the employee know, if you are not already doing this, that there's a heightened level of oversight.

    If the need for leave is to be there for scheduled doctor's appointments, the law requires employees to schedule those absences in a way that least disrupts operations, which it sounds like is not happening here. Finally, if a suspicious pattern of absences does occur (like the employee whose condition only flares up on Fridays and Mondays), the law allows the employer to provide the pattern of absences to the health care provider and inquire whether the pattern is consistent with the need for leave.

    If the need for intermittent leave is foreseeable, you may transfer the employee during the period of the intermittent leave to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave. The alternate position must have equivalent pay and benefits, but does not have to provide equivalent duties. If the employee asks to use leave in order to work a reduced work schedule, you may also transfer the employee to a part-time role at the same hourly rate as the employee’s original position, as long as benefits remain the same.

    Finally, whatever you do, confer with legal counsel and document, document, document. If other employees are running into him/her at the grocery store when he/she is supposed to be out of town with their sick loved one, document that as well.
    I am not able to respond to private messages. Thanks!

    Comment


    • #3
      Great, thanks for the response. Still seems like we are limited on what we can ask, or at least how. Currently we are not requesting 30 day re-cert so I will suggest that to my HR person.

      It also looks like maybe as supervisors we should be asking a little more info when the person needs to use the leave to be sure they are covered for it. This is also something we do not do. The person just says I need the time off and no one questions it. Am I reading the rules correctly in that regard?

      Thanks

      Comment


      • #4
        Is the OT predictable? If the parent really is a plane ride away and you have reason to believe that the employee is not going, you can have surveillance done. It can be as simple as calling the house or driving by. You absolutely can question a last minute "trip" and ask when it was scheduled. Employees still need to give notice of absences and for a long distance trip such as this, it is reasonable to ask for the employee's schedule of required absences in advance. If an emergency arises, I would reschedule the on-call or OT for once they return.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

        Comment


        • #5
          Originally posted by ElleMD View Post
          Is the OT predictable? If the parent really is a plane ride away and you have reason to believe that the employee is not going, you can have surveillance done. It can be as simple as calling the house or driving by. You absolutely can question a last minute "trip" and ask when it was scheduled. Employees still need to give notice of absences and for a long distance trip such as this, it is reasonable to ask for the employee's schedule of required absences in advance. If an emergency arises, I would reschedule the on-call or OT for once they return.
          Usually the OT is only known a few days in advance, sometimes it's the next day. The employee will wait for the OT to be assigned and then go home and call back in to say they cannot cover it. When you say questions a last minute trip, if they say it's an emergency I assume that's when the questioning would stop? As far as rescheduling the OT or on-calls, this is something I am going to look at better going forward.

          Thanks

          Comment


          • #6
            There has been revisions to FMLA and PDL in the state of California. Make sure you look into those. PDL Has been revised and all businesses shall be compliant by April 1, 2016

            Comment


            • #7
              This is an old thread and has nothing to do with PDL.
              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

              Comment


              • #8
                Originally posted by ElleMD View Post
                This is an old thread and has nothing to do with PDL.
                Thank you for stating it's and old post. There is still a chance we can help someone. PDL and FMLA coincide depending on the specific situation. If you read the laws you can see this.

                Comment


                • #9
                  Originally posted by americansafety View Post
                  Thank you for stating it's and old post. There is still a chance we can help someone. PDL and FMLA coincide depending on the specific situation. If you read the laws you can see this.
                  Telling someone to look at specific laws that have many many moving parts isn't much help. Instead, pointing them to specific points or sections of the laws might help if it actually applies to their situation. Otherwise you aren't really helping by sending them on a wild good chase in two very large pieces of legislation. It's not about helping a random "someone" but the person who posted the actual question.

                  Comment


                  • #10
                    Originally posted by americansafety View Post
                    Thank you for stating it's and old post. There is still a chance we can help someone. PDL and FMLA coincide depending on the specific situation. If you read the laws you can see this.
                    That's true, they do. But not in this situation, since the poster clearly states that their leave is for a parent. If you are determined to post an update to an old thread (which we would greatly prefer that you not do), at least pick one for which the update is relevant.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment


                    • #11
                      Originally posted by hr for me View Post
                      Telling someone to look at specific laws that have many many moving parts isn't much help. Instead, pointing them to specific points or sections of the laws might help if it actually applies to their situation. Otherwise you aren't really helping by sending them on a wild good chase in two very large pieces of legislation. It's not about helping a random "someone" but the person who posted the actual question.
                      Actually it's not a wild goose chase. All the person has to do is go into his or her break room at their place of employment and read the labor law postings that should be posted. That will give them their specific rights under FMLA if they have a question about it, or any other law they have a question about.

                      Comment


                      • #12
                        Originally posted by americansafety View Post
                        Thank you for stating it's and old post. There is still a chance we can help someone. PDL and FMLA coincide depending on the specific situation. If you read the laws you can see this.
                        It does not apply to an employee taking leave for a parent. Please do not confuse posters by giving information that is not relevant to their situation.
                        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                        Comment


                        • #13
                          Originally posted by ElleMD View Post
                          It does not apply to an employee taking leave for a parent. Please do not confuse posters by giving information that is not relevant to their situation.
                          You are missing the point obviously. Oh well if that is what you believe go for it. FMLA is Family Medical Leave I do not know if you are aware FMLA can be used for a parent or other immediate family,which is stated in the FMLA portion of a Labor Law Poster. Trust me I sell them for a part of my living. I am not here to give specific advise on each subject, but try to direct where I can to labor laws that are posted in the work place. You never know that little section that states the FMLA laws could help someone that did not know about labor law postings in the work place. Now for posting on an old post and people above getting upset about it, like I stated before someone could still be dealing with a situation similar not necessarily the original poster and find what I posted on an older post helpful. Now lets be done with the back and forth banter as you now know where I am coming from and why I am posting.

                          Comment


                          • #14
                            Ahh! Now we find out your background. Your goal is to sell posters that include PDL and FMLA. Hate to tell you most of us posting out here have decades of actual HR experience and are VERY familiar with FMLA and somewhat familiar with PDL if we have employees in California. You are "schooling" those that have much more knowledge than what is on a required poster.

                            Your advice to look at the labor law posters posted at the employee's worksite is not a terrible idea, but many questions are raised that go way beyond what is required on a poster in the breakroom. If they could get the answer there, they wouldn't need to ask out here! That's why people come out here to ask questions and get pointed somewhere more specific and with people who deal with FMLA on a very consistent basis.

                            Comment


                            • #15
                              Originally posted by hr for me View Post
                              Ahh! Now we find out your background. Your goal is to sell posters that include PDL and FMLA. Hate to tell you most of us posting out here have decades of actual HR experience and are VERY familiar with FMLA and somewhat familiar with PDL if we have employees in California. You are "schooling" those that have much more knowledge than what is on a required poster.

                              Your advice to look at the labor law posters posted at the employee's worksite is not a terrible idea, but many questions are raised that go way beyond what is required on a poster in the breakroom. If they could get the answer there, they wouldn't need to ask out here! That's why people come out here to ask questions and get pointed somewhere more specific and with people who deal with FMLA on a very consistent basis.
                              I am not here to sell posters. I am here to help where I can. I have been in HR positions as well and I am in one right now. Again I am here to help where I can and learn a thing or too as well.

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