How much leave is too much?

Sep 10 2007 by Derek Torres Print This Article

An Illinois court recently listened to arguments in the case of Jennifer Smith, an employee with a reputation for absenteeism, who claimed a 13th FMLA (Family and Medical Leave Act) leave in 12 years of employment.

Under the Act, employers must grant eligible employees a total of up to 12 weeks of unpaid leave during any 12-month period for reasons such as the birth of a child or a serious health condition.

Without getting in to the nitty gritty of all the details (you can read them here), this story can be summed up like this. Smith's employer (already a bit skeptical of someone taking a 13th leave in 12 years) hired a private investigator to track her.

At this point, I'm thinking that if the issue is as dire as the employer is claiming (that basically the Smith committed fraud), why didn't they just refuse the FMLA request or invoke at-will employment because the she was unable to perform the required functions of their jobs?

Smith subsequently made statements that were later contradicted by her employer's HR people as well her own physician. To make matters worse, Smith dug herself deeper into the hole by taking a trip to Florida while on leave. As a result of all this, her employer terminated her for "fraudulent medical leave."

She subsequently sued and her employer asked for dismissal of the lawsuit. However, due to an inefficient (there are better adjectives out there, but I don't want them to sue me next!) HR department, this motion was denied. As it was, the HR people didn't bother to present notes from their alleged conversations with Smith, nor did they produce the investigator's report.

There are two sides to the argument here. First, should an employer be required to employ someone who they feel is using federal laws to avoid work? But bear in mind that Smith wasn't paid during this time off and neither was she performing a specialized task that would be difficult to fill in her absence.

Here's the catch though: as great as it is to have such provisions available for people who need them, it's beyond comprehension how someone can claim a medical leave of absence yet not have to provide medical documentation to justify the absence.

While I'm 100% for medical secrecy, a physician should be able to produce a letter stating that due to medical reasons, employee X should take a FMLA leave.

In this story, it sounds like we may have two less-than-honest parties trying to pull a fast one. The employer makes me worry for others in the company who have legitimate reasons to take leave. The employee makes me worry about us all losing that right by abusing the legislation.