A case last week out of the District Court in Illinois highlights something I have long maintained with respect to the Family Medical Leave Act, namely, that the best way employers can prevent misuse of FMLA leave is to require employees to play by the rules. With the recent revision in FMLA regulations, the rules can be as onerous for people trying to misuse leave as they can for employers trying to abide by the FMLA requirements.
Plaintiff here is a Polish interpreter at a county hospital (the Chicago area has almost as many Polish speaking people as Warsaw, so this was someone who had plenty to do). On August 4, 2008, he asked for a month's vacation leave from August 11 to September 11. The employer denied this request based on timing and staffing. The employee then promptly turned in an FMLA leave of absence request three days later, claiming he needed time off for chronic depression and lower back pain, and asking for a three month leave of absence, beginning at the same time as his denied vacation.
What a coincidence.
After some back and forth over his medical certification, but before any FMLA leave was approved, the employee left town. But not before he told a couple of his friends that he was in fact headed for Mexico, a well known destination for therapy to relieve chronic depression and low back pain, although probably not at the same time. The employer ended up firing him for job abandonment.
The federal court disposed of plaintiff's FMLA interference and retaliation claims easily. The judge noted that plaintiff failed to provide the required 30 days of notice, and because his medical conditions were chronic and there was no indication of an emergency, the failure to do so was ample basis for the employer to deny leave. Moreover, the court determined that plaintiff did in fact go to Mexico, recreated with friends, and spent time in several other vacation destinations, which justified the employer canceling the leave even if had been properly noticed. And once the judge ruled that plaintiff was not entitled to FMLA leave because of no notice and misuse of the leave, she then dumped plaintiff's retaliation claim on the ground that where is no entitlement to FMLA leave, there can be no retaliation for taking it.
Many FMLA situations arrive on short notice, so 30 days of notice is not always practical. But where an employee is simply using FMLA to augment a vacation entitlement, the notice requirement and other procedural mandates can be a powerful tool to close off abuse.