Tuesday, March 1, 2011

Sick and Tired of Employees Abusing Sick Days—What’s an Employer to Do?

One can hardly turn on the news without seeing coverage of the stand-off in Madison, Wisconsin between Governor Walker and union protesters over the Governor’s proposal to require government workers to contribute more to their health care and pension costs and to largely eliminate their collective bargaining rights. Many protesters who called in sick to attend the protest rallies were allegedly able to obtain sick notes from doctors who were providing sick notes at the protest rallies without any medical examination. This raises an interesting question—what is an employer to do when it suspects that an employee is faking an injury or illness in order to miss work? Well, that depends on a few key things.
First, does the company’s handbook require an absent employee to provide medical certification of an absence for medical reasons? Although under certain circumstances an employer might require medical certification absent such a policy, it is best if the handbook expressly permits the employer to request medical certification. In many cases, this will eliminate fraudulent use of sick leave because the employee will actually need to obtain medical certification of their need for the absence. A word of caution: in order to avoid discrimination claims, employers should be careful to be consistent in their enforcement of a policy or practice that requires absent employees to provide medical certification.
Second, are there any other contracts that might govern an employee’s use of sick time (i.e. union contracts or employment contracts) and, if so, what do those policies say about requiring medical certification of an absence for medical reasons? As with the handbook policy, the employer will need to abide by the language in the contract and should be consistent in how it approaches these situations.
Third, might the absence qualify the individual for FMLA leave or has the absent employee previously qualified for FMLA leave? If the employee hasn’t already qualified for FMLA leave, the employer may require the employee to provide certification from a health care provider. The FMLA also permits an employer to require second or third medical opinions (at the employer's expense) and periodic recertification of a serious health condition. The rules around how often and under what circumstances an employer can require recertification are pretty detailed, so employers should proceed with caution. Also, if an employer wants to authenticate or clarify the medical certification, the employer may use a health care provider, a human resource professional, a leave administrator, or a management official – but not the employee’s direct supervisor.
If the employee is unable to provide medical certification supporting the absence, the employer can generally treat the absence as unexcused and, consistent with the employer’s handbook policies and any other contracts that govern the relationship, the employer can discipline the employee. If, as may be the case with the Wisconsin protestors, the employee provides medical certification, but the employer questions the authenticity of the certification, the employer could attempt to show that the certification was fabricated (this may be very difficult to do) or that it was based on false information. For example, if the employee’s medical certification stated that the employee had to miss work because he was on bed rest and the employee posted on Facebook that he had his best round of golf ever on that same day, then the employer may be able to take action. More words of caution: due to concerns about invasion of privacy and federal Stored Communications Act claims, employers need to be careful about how they obtain this kind of information. Also, employers should be aware that there are certain medical conditions that might excuse an employee from missing work, but allow an employee to engage in other activities outside of their home. Many traps for the unwary!

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