Welcome to my second article! I’ll be writing articles periodically when I have news to share with you or an opinion on current events. I hope you had a chance to read my first article. I promised to share with you some “HR Knicker Twisters” gleaned from the recent SHRM® 2010 Annual Conference and Exposition that I attended in San Diego, California. Californians: you have a seriously gorgeous state. I can see why California is in such danger of earthquakes. There must be so many jealous transplants from other states weighing it down that if a really big earthquake happened California would just crack off and drop into the Pacific.
As your intrepid Undercover HR Director, I attended the SHRM® Conference sessions complete with my paper bag (with eye holes) and note pad to capture what Human Resources professionals are worried about. In case you didn’t catch my last article, SHRM® stands for Society for Human Resource Management, and it’s the world’s largest association of HR professionals, with over 250,000 members in more than 140 countries. There were over 11,000 attendees at this year’s 3-day conference attending 200+ training sessions.
Naturally, Health Care Reform was a popular topic, with dozens of sessions available daily. FMLA was, as always, popular. One speaker labeled it the “Friday/Monday Leave Act” to point out one of the three biggest indicators of abuse employers should watch for. The second is the “annual” illness that occurs at the same time every year – for example, Mike goes to his cottage for the same week every July but one year is denied his vacation request. So, conveniently, he suddenly gets an FMLA-qualifying serious health condition (back pain) for that same week. And then he continues to get that same condition every year on the same week! Finally, the “perfect fit” illness, which is when an employee seems to coincidentally use up exactly 12 weeks of FMLA leave each year, spaced out just right, so they always have some left when they return to work. The employee has a serious health condition – right up until the point they exhaust their 12 weeks of FMLA for the year, then they have perfect attendance.
The Department of Labor reports that 25% of FMLA use is the result of abuse by employees. The problem this creates is that everyone is then treated by their employers as though they’re abusing FMLA. It’s unfortunate, but true. When an HR person attends one of these training sessions, s/he gains a heightened awareness of the possibility of abuse. So s/he treats everyone as though they’re abusing FMLA – even the folks using it legitimately. But if 25% of FMLA use is the result of abuse, that still leaves 75% of FMLA use being the result of legitimate need – right?
You may be a member of this Forum because you were using FMLA legitimately and you’ve been abused by your employer precisely because you used FMLA legitimately and now you’re mad. You may be an employer checking out this Forum to see what dastardly activity your employees are plotting against you. Employers need to realize that happy employees don’t go looking for legal resources when they’re treated fairly. They go looking for legal resources when they’re treated unfairly. Sometimes a simple apology or some simple communication and understanding is all an employee is looking for. You hear me, JBL?
Supervisors can be sued individually under FMLA for their interference with employees’ FMLA rights. So while HR managers were at the SHRM Conference learning how to identify abusers, they were also learning that their supervisors could be sued individually. Think that doesn’t cause their knickers to get in a twist?
Here’s another one: an employer needs to make sure its supervisors talk to each other about employee issues. So if an employee transfers from one supervisor to another, the cumulative knowledge of those supervisors is deemed to reside within the company’s “institutional memory” and the company is responsible for the collective knowledge as though a single person held all the knowledge.
For example: Sue is a 50 year old woman who works for Joe. Sue tells Joe she hasn’t been feeling well for a while – she’s been tired and worn out. Sue has several absences, using up all of her paid personal time. Three months later, Sue is transferred to Betty and casually mentions to Betty that her sister is being treated for ovarian cancer. Sue misses quite a bit more work because she’s still tired and not feeling like herself. Betty writes Sue up, warning her that if her attendance doesn’t improve, she could be terminated.
Nervous about her job, Sue tells an HR rep that she has an appointment for an ultrasound in two weeks, casually mentions that her mother died from ovarian cancer 10 years earlier, and Sue is anxious about the results of the ultrasound. Sue asks whether she can get Intermittent FMLA for her absences and the ultrasound test. The HR rep tells Sue since she hasn’t actually been diagnosed with anything, her absences and testing aren’t covered by FMLA. (wrong!) The HR rep points out that Sue probably won’t even be employed by the time her ultrasound appointment rolls around because her attendance is so poor.
A week later – after two more absences because of fatigue – Sue is terminated. Guess what? Because of the decision in the 2007 7th U.S. Circuit Court of Appeals Burnett case, an institutional memory is presumed to exist and Sue’s employer has interfered with Sue’s rights under the FMLA. (Burnett v. LFW Inc., d/b/a The Habitat Co., 7th Cir., No. 06-1013 (Dec. 26, 2006)). The fact that this case is still being pointed to by attorneys in training sessions three years after it was decided is evidence that employers and their attorneys are still nervous about the impact of this case.
Oh, yes – and absences for symptoms of serious health conditions and testing are protected under FMLA, so Sue’s HR rep gave her bad information in the first place.
Another FMLA-related situation employers are being encouraged to take advantage of is requiring a Second Opinion whenever they doubt the validity of the certification. Every HR rep knows of a few doctors in their area who are willing to write FMLA Certifications for any reason, whether the employee has the accompanying Serious Health Condition or not. Examples of this would be ‘stress’, ‘migraines’, and ‘back pain’. Those are the suspect conditions that may cause an employer to require a second opinion. If an employee refuses to cooperate with getting the second opinion, the employee loses the FMLA protection. The lesson here is to make sure you see a qualified expert physician for your FMLA certification, not a “known pushover” and cooperate if your employer requires a second opinion. Employers were also encouraged to attach a copy of the employee’s attendance record to the recertification request for the physician. In other words, the employer is asking the physician whether the pattern of absences or tardies used by the employee in the past is consistent with the serious health condition from which the employee or his or her family member claims to suffer.
Something else employers were encouraged to do to curb FMLA abuse was to hire off-duty police officers to conduct surveillance on their employees who are on FMLA leave. So watch out – that suspicious vehicle parked outside your house could be someone paid to spy on you for your employer.
While I was in San Diego, I drove my little bright blue Hyundai rental up to hoity-toity La Jolla. I expected to find seals on the rocky La Jolla coast, but instead found a whole bunch of BMWs, Mercedes, Range Rovers, Lexuses and Rolls Royces in sedate colors, maneuvering the well-maintained streets. I tried hard not to kiss their bumpers as I gawked shamelessly. I’m surprised they let me park the Hyundai on their streets! But hey – I was wearing a paper bag over my head, so they didn’t know it was the Undercover HR Director in their midst!
Maybe next year at the SHRM Conference, I’ll do a presentation on FMLA from the employee’s perspective. It’s instructive to see it from both sides.
Got questions about your FMLA issue? Send me an email: firstname.lastname@example.org