Hoosier Banker 33 < 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. CARRIE HILL > < MADALYN KINSEY 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. holidays, or telling a coworker about taking a ski trip or going fishing the day the employee was absent), or is attempting to use FMLA protected for an unqualifying reason, an employer can investigate. If the investigation confirms the suspicion, the employer can take disciplinary action, including termination. The honest-belief rule is a defense to an FMLA retaliation claim by the employee.2 The key is that the employer makes a reasonably informed decision before disciplining the employee. First and foremost, an employer should have a system for tracking FMLA leave. This helps identify patterns of abuse. If abuse is suspected, take quick action. Conduct a thorough investigation, interview coworkers, and get signed statements from everyone with relevant information. Review the employee’s publicly available social media, and consider surveillance. If abuse is still suspected, meet with the employee and provide an opportunity to explain or submit additional relevant information, including documentation. Documenting the investigation is critical, as it will provide the basis of the company’s defense if the decision is challenged. The FMLA does not insulate employees from questioning by the employer. Employers can require the employee to provide relevant information, including the need for FMLA leave and anticipated return date. The employee can be required to follow normal call-in procedures and verify that the absences are FMLA-related. This should be spelled out in the employer’s policies. An employer may also call the employee who is on leave to verify the employee is at home and may require the employee to attest in writing that the leave is or was FMLA-related. [Note: An employer cannot require a doctor’s note unless it is a request for recertification. A request for recertification can generally happen only once every 30 days unless the employee is requesting an extension of the leave, circumstances have changed significantly since the prior certification (e.g., employee’s absences are exceeding the number of days off previously certified), or the employer has an honest 1The FMLA regulations (29 C.F.R. § 825.307) require an employer to give an employee an opportunity to cure deficiencies (such as missing or erroneous information) before the employer may contact the doctor for purposes of clarification and authentication. This does not apply, however, when the employee submits a patently false certification. Falsification is not a “deficiency” that can be cured. 2 29 C.F.R. § 825.216(d). belief that the employee’s stated reason for the leave is untrue or otherwise improper.] If a proper investigation reveals sufficient evidence to confirm the employer’s suspicions of FMLA abuse, an employer may deny the FMLA leave and discipline the employee, up to and including termination. Employers should consult with counsel throughout the investigative and decisionmaking process. HB
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