Talk about an FMLA leave headache!  This one was a migraine

When dozens of employees seek FMLA leave essentially all at once, something might be up.

In this case, a federal appeals court rejected several claims filed by employees who were terminated after seeking FMLA leave along with many others. The employer had good reason to believe that the employees acted dishonestly and sought the FMLA leave for an improper purpose, the court said.

Just what was that improper purpose? Let’s dive in to the details.

This story begins with a decision by CSX Transportation to issue furlough notices to a large number of employees at its facility in Huntington, West Virginia. Those notices went out in the middle of June 2017.

Over the next month or so, 67 employees at the facility submitted forms to take medical leave. All of the forms were submitted by one of two chiropractors, and they were “similar or identical in content,” the court’s ruling explains.

All the forms said the employees had minor musculoskeletal conditions such as sprains or muscle spasms. They all said the injuries were sustained off duty, and none included an individualized assessment.

And they all said the employee needed to stay out of work for at least eight weeks.

One of the chiropractors had the chutzpah to send along 14 of the forms in a single day.

The big question: Why?

Why would these employees do such a thing? A possible clue: Under CSX’s benefits plan, employees furloughed while on medical leave got health and welfare benefits for up to two years. If they were not on medical leave, that period of benefits shrunk all the way down to just four months.

Needless to say, CSX wasn’t thrilled – and smelled something fishy. Its chief medical officer said that in his long career, he had never seen such a deluge of markedly similar forms over such a short time span. He added that in his opinion, it should take only about a week for the claimed injuries to heal.

The employer decided to pursue charges of dishonesty and fraud against the employees involved. When doing so, it leaned on its code of ethics and an operating rule that specifically bars dishonest, insubordinate, and disloyal behavior.

Dear chiropractor: That’s enough

It also told the two chiropractors not to bother sending it medical documentation about any of its employees ever again.

After holding hearings, CSX terminated the employees for violating its ban on dishonest behavior.

A group of 58 of them sued, asserting 10 different claims against the employer. After six of those claims were trimmed from the suit, the trial court ruled for CSX on discrimination and retaliation claims filed under ERISA, the Rehabilitation Act, the FMLA, and a state human rights act. It also ruled for CSX on an FMLA claim of unlawful interference.

It based its ruling on the finding that CSX had an honest belief that the employees sought time off for an improper reason.

By the time the case reached the U.S. Court of Appeals for the Fourth Circuit for further review, just six plaintiffs remained – with all the others having reached alternative resolutions.

Appeals court: You lose

The appeals court affirmed the ruling for the employer.

On the discrimination and retaliation claims, the appeals court said CSX offered up a legitimate and nondiscriminatory reason for the terminations: its finding that the employees all violated its rule against dishonesty.

That shifted the burden to the employees to show that the offered reason was really just a cover, or what the law calls “pretext,” for unlawful discrimination or retaliation. They did not meet that burden, it said.

The company’s vice president explained that he pulled the trigger on the terminations based on suspected fraud, and the employees provided nothing to show that was not the real reason for the decision.

As to the FMLA claim, the court noted that CSX did not notify the employees of their FMLA rights when they submitted their claim forms. But it also decided that they were not harmed by the omission; in fact, there was nothing to show they would have done anything differently had the notice been provided.

The lower court’s ruling was affirmed.

Did the employees in this case try to abuse FMLA leave? You can decide for yourself, based on the facts.

5 tips to curb FMLA leave abuse

In any event, FMLA abuse is nothing new. Here are five quick tips to help curb it.

1. Get medical certification. Under the FMLA, employers can require employees seeking leave for a serious health condition to submit a certification from a health care provider that supports the need for the leave.
2. Seek second (and sometimes third) opinions. If there is a good reason to doubt the validity of an initial medical certification, under the FMLA the employer can require the employee to get a second certification, at the employer’s expense. And if the second opinion differs from the first, a third may be required – again, at the employer’s expense. The third one is final.
3. Make them use accrued leave. An FMLA regulation specifically permits employers to require employees to substitute accrued paid leave for unpaid FMLA leave. In these cases, paid leave provided by the employer runs concurrently with unpaid FMLA leave. This practice may discourage FMLA leave abuse.
4. Have an established policy banning dishonesty. Having a written policy that specifically and clearly bans dishonest behavior can help avoid or at least enable an effective response to FMLA leave abuse, and it did in the case discussed above.
5. Keep the communication lines open. Maintain contact with employees who are on FMLA leave, such as by having managers make a weekly call to them. This can help reduce FMLA leave abuse.