- Three police communications operators in Chicago's Office of Emergency Management and Communications used intermittent leave under the Family and Medical Leave Act (FMLA) to take a Caribbean cruise together in July 2017 — and two of the three took 10 cruises using sick leave and/or FMLA dating as far back as 2010, the city's Office of Inspector General (OIG) revealed in a 2019 second quarter report.
- The OIG said that records and testimony revealed the cruise was booked almost a full year in advance, and employees used intermittent FMLA leave for at least a portion of the vacation. While on the cruise, the employees "consumed alcohol, went to numerous restaurants, attended night clubs, toured Caribbean islands, went horseback riding, rode jet skis, and even went on a 'booze cruise'" the OIG said in the report.
- The OIG also discovered that another worker used intermittent leave to take Caribbean cruises in 2014 and 2017. The OIG said records and testimony revealed that the worker "flew on planes, watched evening movies on the ship deck, ate at restaurants, consumed alcohol, including the 'drink of the day,' toured various islands, shopped and even went to a nightclub while on the cruises." The worker used 19 FMLA days to take the cruises, the OIG said. The worker allegedly admitted in an interview that the use of the leave was "just to get away."
Employees sometimes offer false reasons for their leave or engage in activities during FMLA leave that appear inconsistent with the reason(s) for the leave. As an example, a court recently ruled that Union Pacific Railroad (UP) was justified in firing an employee who took FMLA leave and then appeared in a co-worker's Facebook live video of a fishing trip on one of the days he was out.
While employers have the right to call out FMLA abuses, they need to be careful in doing so. If employers, managers or supervisors are snarky or hostile when they suspect misuse of FMLA, employees get defensive and lawsuits can follow. A Massachusetts jury recently awarded $2 million to an employee accused of FMLA abuses because the employer didn't investigate in good faith; it started its fact finding with a "presumption of wrongdoing."
Experts say intermittent FMLA leave can be prone to abuses because it can be taken in small increments and at a moment's notice. Attorney Jeff Nowak, a shareholder at Littler Mendelson, has several steps that employers can take to cut down on such abuses, he told HR Dive in a previous article. These steps include:
- requiring employees to complete a written leave request form for all absences (even though an employer cannot deny FMLA leave if the employee provides verbal notice of the need for the leave and explains why he or she can not follow established procedures);
- preparing a list of questions to be asked when employees ask for time off;
- enforcing call-in procedures;
- requiring medical certification at regular intervals, such as in the beginning to certify the health condition and every time the employee requests an extension;
- seeking a second opinion if the medical certification is in doubt; and
- taking advantage of an FMLA regulation that allows employers to send a letter to the employee's healthcare provide commenting on suspicious patterns of FMLA use and asking whether the leave is consistent with the employee's health condition and need for FMLA leave.
Nowak also advises that employers have a policy of checking in on employees who are using paid sick leave and actually following through on the check-ins.