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  • Abuse of Sick Leave California

    Located in California

    Our company is in the heathcare field so employee access to physicians is easier than other professions. We have an employee who annually, at the holiday season, gets a physicians off work order for some reason. The first year (2006) was clearly not valid but the clinic where she is assigned lied to me about the validity until a few months later. I found out much later that the Human Resources Manager there was involvded with her. Last year (2007), she again got an off work order from another physicians office where her sister works. This year (2008), she again has an off work order which we have not seen yet.

    Can we terminate her for attendance? She has shown a definite pattern of getting a questionable off work order every holiday season for the last 3 years, including now.

  • #2
    Are any of the alleged reasons something that would be a "serious medical condition" under the FMLA? Is the absence for at least 3 days? Or are you even subject to the FMLA?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      I think where Patty is going with this is how solid is the ee's position with respect to FMLA versus how solid is your case against the ee showing the ee is abusing the system? If the ee is qualified for FMLA and the doctor is siding with the ee, then it is your word against a doctor's word that the ee has no serious health condition which qualifies for FMLA leave. What you have presented looks like a suspicious pattern but you may need more than just suspicion to have the law fully on your side. In addition, in employment law there are 49 states...and the there is California, and I am less familiar with provisions under your FEHA and any other applicable CA laws than I am with the federal equivalents.

      As an aside, I recall back when I worked in health care a new patient came to me asking for a note to her er excusing her from having to work during the holidays due to holiday stress. I asked her what was so stressful about the holidays and she said she came from a very dysfunctional family of origin and visiting them over the holidays (1000 miles away) left her so stressed she could not work for two weeks. I wrote out a note, had my secretary type it up, signed it, and handed it to her but she was not a happy camper when she left. Basically what I said in the note was that the decision to go see her dysfunctional family was her choice, and if she wanted to avoid that stress and be able to work she had the right to choose to not go visit them. Never saw her again so no idea how it turned out.
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      • #4
        Yes, we are subject to FMLA. The 1st time was for the flu and gave her 5 days off. The off work order was from her clinic and used a signature stamp. The 2nd time did not specify a reason but also gave her 5 days off from her sisters clinic. I have not seen this off work order yet but it is also for 5 days. We are not going to do anything until we get a copy of it and can verify teh validity of it.

        I understand the issues with FMLA and the caution that is necessary. In each case, she has requested time off in writing but we could not grant it as we could not provide a substitute to cover her position and she does not have seniority. She has gotten a off work order each time to cover the exact days off that she requested.
        Last edited by aswas71788; 01-05-2009, 10:24 AM.

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        • #5
          Sounds fishy to me, too, but this is not my greatest area of expertise. Hang tight.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            Even if she is on FMLA, the employer has the option of sending her for a 2nd opinion at the expense of the company.

            On the last absences, was she given the FMLA paperwork and was it returned? If the paperwork was not returned, I would treat it as I would any other attendance issue.
            Amateurs built the Ark, Professionals built the Titanic

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            • #7
              In each of the last 3 years (including this time), the employee has elected to use available sick leave in lieu of FMLA or Disability. I went back and checked and found that in each of the previous 2 times (2006 & 2007) she cashed out an equivalent amount of vacation within a month after taking off on the off work order. I talked to her today and she says she cannot get me a copy of her sick leave until she returns on the 18th of January.

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              • #8
                Originally posted by aswas71788 View Post
                I talked to her today and she says she cannot get me a copy of her sick leave until she returns on the 18th of January.
                You noted in one of your posts that she wants/needs off this time for 5 days which would be Jan. 13th thru Jan. 17 if she is to return on the 18th. I would tell her you need the doctor's note before taking any time off (& verify it) - if FMLA applies, give her the FMLA paper work & tell her to have it completed.

                Why can't she give you the "copy of her sick leave" before she returns on the 18th? This sure sounds fishy.
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                • #9
                  Originally posted by aswas71788 View Post
                  In each of the last 3 years (including this time), the employee has elected to use available sick leave in lieu of FMLA or Disability.

                  You do know, of course, that this is not an either/or situation, i.e. sick leave in lieu of FMLA, if all the requirements are met AND the employee returns the doctor's certification within the required time period, right?
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    Fmla

                    As PattyMD stated it is not sick time in lieu of FMLA. It is the EMPLOYERS responsibility to designate it FMLA pending the CHP being returned. If the criteria is met then the employee has NO choice and if it is not, the employer is free to follow attendance policy and discipline accordingly.

                    For instance, if an employee calls me and states they are ill and will be out for 5 days with or without a doctor's excuse, I send FMLA packet out IMMEDIATELY. The employee is required to return it. If the health care provider states it's the flu and not a serious health condition, I proceed with attendance (sicktime, etc.) If the it is deemed, asthma related or another SHC, I then follow FMLA. According to your FMLA policy, if the employee is required to use all paid time first, the ee would still be paid sick time BUT the time would still count as FMLA.

                    It sounds like this employee has figured out how to work the system and has been allowed to. If she is ill, she should have already been to see a physician and should be able to provide documentation. Seems to me, she has taken an extended holiday and plans on going to a physician right before her return and hoping the physician will believe her "I've been in bed sick the last 2 weeks with so and so" story and write her an excuse. If that is the case, I would personally not except it and follow attendance policy.
                    Amateurs built the Ark, Professionals built the Titanic

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                    • #11
                      I have sent FMLA paperwork. It was not returned the first 2 times and I do not expect to see it this time. FMLA just closed the cases since the employee did not respond. The 1st time she was off, she was "under a doctors care", the 2nd time was "due to medical conditions" and this time I do not know. Per her statement, she cannot send the Off Work order because she is not at work and has no way to fax it to me.

                      Thank you all for your input.

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                      • #12
                        Originally posted by aswas71788 View Post
                        Per her statement, she cannot send the Off Work order because she is not at work and has no way to fax it to me.

                        Thank you all for your input.
                        Hello, employee. Post office, libraries, grocery store customer service center, Kinko's, etc. Some or all of these have fax services. Not a good excuse, IMHO.
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                        • #13
                          I would not terminate her at this point. However, you mentioned that her 2006 was not valid, but the clinic lied about the validity of the cert. Sounds like you didn't address it at the time, but from here on out, I would check every certification she provides. If she has provided a fraudulent medical certification in the past and "gotten away with it", then you can safely presume she may take that tactic again.

                          If she provides false medical certification, then you can terminate her for that. We would have done it in 2006, at the time of discovery.

                          Good luck!

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                          • #14
                            Originally posted by HR/DisMgr View Post
                            I would not terminate her at this point. However, you mentioned that her 2006 was not valid, but the clinic lied about the validity of the cert. Sounds like you didn't address it at the time, but from here on out, I would check every certification she provides. If she has provided a fraudulent medical certification in the past and "gotten away with it", then you can safely presume she may take that tactic again.

                            If she provides false medical certification, then you can terminate her for that. We would have done it in 2006, at the time of discovery.

                            Good luck!
                            The HR Manager at the clinic did not acknowledge covering up for her until last Monday 1/5/09. In the State of California we will get into major, major trouble if we termiante now for something that happened in 2006 regardless of the circumstances.

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