Tackling Tough FMLA Issues - Designation, Serious Mental Health Conditions, Attendance Policies and So-Called Fraud

posted by Michael Fortney  |  Oct 28, 2013 10:04 AM in Employment Law:Employee Benefits

Stephanie Trudeau and I presented a paper this month to the Ohio State Bar Association's  50th annual Midwest Labor Law Conference. Stephanie is a partner with Ulmer & Berne. The paper we presented was on the Family and Medical Leave Act (FMLA). It became law 20 years ago. 

Our paper tackled the most difficult FMLA issues that Stephanie and I encounter in our daily practices. They include:


  • Designating absences as covered by the FMLA, and the employer's need to get it right;
  • Administering FMLA for serious mental health conditions, including intermittent leave and privacy rights of patients, including those with serious mental illness.
  • Avoiding traps created by attendance policies, especially no fault policies, and 
  • So-called Fraud, or an employer's "Other legitimate Reason" defense to an FMLA violation,
I am attaching a copy of our FMLA Tough Issues power point presentation.  
The collection and use of information about the need for, and the frequency and duration of FMLA leave, tied these topics together. As Stephanie stressed, employers should ask for all available FMLA information, especially within five days of the employee's request for leave. However, an employer's zealous pursuit of information about the need for leave could invade an employee's right to keep his or her medical information private. Medical privacy is particularly important to people with serious mental illnesses.
An employee who obtains leave by providing information about the need for leave that is false commits FMLA fraud. An employer is within its rights to terminate employees who commit FMLA fraud, as long as the employer has otherwise given the employee all the leave to which he or she is entitled. The same is true of other employee conduct involving dischargeable offenses. The tough issue is whether the "honest belief" rule is available to help establish this defense. The quick takeaway: the honest belief rule is available to defend against an FMLA retaliation claim, but not an FMLA interference claim.


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