Human Resource Blog

Can an employee routinely call in sick for FMLA then accept an Overtime in same day?

We have an employee who is approved for FMLA who calls in on a regular basis for her shift, resulting in a mandatory overtime for staff. Then she takes an overtime on another shift and the cycle continues. Are there any laws or rules that address this type of abuse of the FMLA system?

The easiest thing to do would be to not allow the employee to work other shifts. However, if your policy or practice is to allow employees who take non-FMLA leaves (such as vacation or sick leave, etc) to work additional shifts to make up the time missed, you must allow employees who are on FMLA leave to do so also.

If you have reason to believe that the employee is abusing the intermittent FMLA leave, first review the certification you have on file to ensure it is current and complete. If not, request a new certification and be sure it specifies the anticipated hours or days that the employee may need to be out of work. If this employee is taking more than the certification indicates, you may want to contact the healthcare provider for clarification. The employee will need to give the healthcare provider written authorization allowing him or her to provide the requested information to the employer.

If, in fact, the healthcare provider certifies that the employee will need the amount of time that she is taking, you do have the option of temporarily moving the employee to another position that will better accommodate the intermittent leave.