However, like any other system, there is a potential for abuse by less than honest employees who might try to use the system for their own benefit. This may include requesting leave to extend vacations, get additional time off, or simply to avoid working holidays. These types of extensions are an abuse of the FMLA system and will allow an employer to terminate an employee for misuse of the system.
This very situation occurred in a Utah case when a Southwest Airlines employee who suffered from backaches requested FMLA leave 35 times to excuse him from work on days immediately following or preceding his already scheduled time off. The employee also regularly took FMLA leave on important dates and holidays, allowing him to get time off when he otherwise would not have been able to. After conducting an investigation into the employee’s pattern of leave, Southwest determined that the leave was a misuse of the FMLA system and terminated him for abusing the company attendance policy.
The employee filed suit against Southwest, claiming retaliation for use of his FLMA leave, as well as disparate treatment under the Americans with Disabilities Act, (ADA,) for failing to accommodate his disability. The court found that Southwest presented adequate evidence to show that the termination was not discriminatory and was justified as an abuse of the FMLA program.
Southwest went so far as to hire an independent party to analyze the evidence and determine if the employee had, in fact, violated the attendance policy. The court also found that Southwest did not violate any ADA protections because the termination was based solely on the belief there was a violation of the attendance policy, and Southwest did, in fact, grant all of the requested FMLA leave that the employee requested.
What this ruling means is that as an employer, if you believe that you have an employee who is abusing the FMLA leave system, you are not without recourse. As a first step, you should contact an employment law attorney for advice on how to proceed. Then you will need ample evidence of abuse of the system, as well as a showing that any termination was not retaliation for requesting leave.
An employer has the right under the ADA to discipline employees for violation of company policies, regardless of disability. Therefore, if you believe you have an employee who is using his or disability to get around company policies, you should consult an employment law attorney to discuss your options for handling that employee.
Photo credit: Microsoft