Hoosier Banker 29 < JOHN TANSELLE < DEBRA MASTRIAN < STEPHEN STITLE < MARTHA LEHMAN LARRY TOMLIN > MARK WENZEL > BRANDT HARDY > 201 North Illinois Street, Suite 1400 Capital Center, South Tower • Indianapolis, Indiana 46204-4212 T: 317.464.4100 • F: 317.464.4101 • salawus.com No challenge too great…we’ll get you there. CHRISTINE DUNCAN > ANDREW PODGORNY > The information in this article is provided for general information purposes only and does not constitute legal advice or an opinion of any kind. You should consult with legal counsel for advice on your institution’s specific legal issues. be unexcused, and the employer’s normal attendance policy would apply. Designate the leave. Properly designate the time off to help exhaust the 12-week FMLA allotment. In some cases, an employer can retroactively designate FMLA leave. An employer can make a limited inquiry each time an employee requests intermittent leave to determine if the absence is for the FMLA-qualifying reason listed on the employee’s FMLA certification. (For example if an employee is certified for intermittent leave because of migraine headaches, but calls in to take leave because of the flu, the leave is not FMLA, and the company should apply its normal attendance policy.) Discipline. The FMLA does not confer any kind of special dispensation to an employee using FMLA leave. The FMLA makes it unlawful to discriminate or retaliate against an employee for exercising their leave rights. In other words, an employer cannot use the employee’s use of FMLA leave as a negative factor in any employment decision (e.g., termination, denial of a promotion, performance review or evaluation). An employee can, however, be disciplined for violating company policies or for poor performance pursuant to the company’s normal disciplinary process. This includes a company’s procedures for reporting absences. If an employee on intermittent leave fails to follow the call-in or call-off procedures, the employee still gets the leave but can be disciplined for the policy violation. An employer should address performance or other disciplinary matters as it would with any other employee in a similar position. Suspected abuse. If an employer has an “honest belief” that an employee is abusing intermittent leave (e.g., regularly calling in sick on Fridays and Mondays, or telling a co-worker about golf or boating excursions on days absent), an employer can investigate. If the investigation confirms the suspicion, the employer can take disciplinary action including termination. (An employer can also request recertification, and unless the employer’s policy provides otherwise, it would be at the employee’s expense.) The honest-belief rule is a defense to an FMLA retaliation claim by the employee. The key is that the employer makes a reasonably informed decision before disciplining the employee. Video surveillance alone may not be sufficient. An employer should conduct a thorough investigation (interviews, obtain statements, request documentation from the employee) and give the employee an opportunity to provide an explanation or submit additional relevant information. Documenting the investigation is critical. HB 1 To be eligible, an employee must have worked for at least 12 months and at least 1,250 hours during the preceding 12 months. Additionally, the company must have 50 or more employees within 75 miles of the employee’s location. 2 Employees are entitled to take intermittent leave for serious health conditions, either their own or those of immediate family members. It is also allowed for child care after the birth, adoption or foster placement of a child, but only if the employer agrees.
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