Have you ever searched Twitter for the term "FMLA"? I have. Some of what you find is insightful and informative information for employers, but you will also run across some interesting commentary from employees. Here are a few of my favorite employee FMLA tweets from the past few months:
- FMLA has been approved yessssssss<<< yessssssss we can leave early friday lmao!!
- FMLA has been approved yessssssss_ lucky ass! I'm trynna get it!
- I should not be allowed to drink and tweet! But fmla is anew version to fml- the a is for alot!
- hey hey hey! All I'm saying is......I may have to "manage my time" with a lil fmla today
- @PopeyesChicken is going bankrupt! I will take FMLA at work for that!
- I have PTSD, so under FMLA I can call in/go home when I need to. I can say sex calms me, and I'm going home to have sex.
So what should you do if you learn of a Tweet (or Facebook update or blog post, etc.) like the ones above - and realize it was posted by one of your employees, who happens to be out on FMLA leave?
When an employee is taking FMLA leave for a serious health condition (their own or a family member's), the FMLA allows an employer to require a recertification when it "receives information that casts doubt upon th employee's stated reason for the absence or the continuing validity of the certification." On recertification, an employer "may provide the health care provider with a record of the employee's absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern." Such information may be helpful if it appears that an employee is, say, regularly playing hookie on Fridays to catch a ballgame or go fishing.
Before asking for a recertification, keep in mind that it's not hard for a dishonest employee to find a doctor who will sign off on a certification without asking many questions. In many cases, the better course may be to talk to the employee first, show them the incriminating post, and give them a chance to come clean. At times, more drastic investigative measures such as surveillance might be warranted, but employers should talk to their attorneys and carefully weigh the risks and benefits before going down that road.
Whatever approach they take, employers should not jump to conclusions or take hasty, ill-considered actions based upon what they read online. People post all kids of things - not all of it serious. An employee who comments about taking FMLA leave to go shopping may be joking, and may in fact have a legitimate need for FMLA leave. Find out what is really going on before taking action against an employee, and remember that you may have to explain your actions to a jury made up of people just like your employee.