The Mysterious Malingerer–Part 2

The Mysterious Malingerer–Part 2

The Mysterious Malingerer–Part 2

The next day Clyde called.  "Look, Bennett, I'm very embarrassed, but this whole thing has been a sham."brain-surgery-2

"Oh, is that so?" Bennett remarked, although he was not surprised.  During his investigation, Bennett had discovered that Clyde had collected between $3,000 to $5,000 from the other employees.  Clyde had told them he needed money for surgery because insurance would only pay for part of it.

"Look, Bennett, this whole thing just snowballed.  I was looking for a little sympathy, and one lie led to another.  I just can't deal with it anymore," Clyde admitted.

Bennett suggested to Clyde that he come in and discuss the situation in person.  After Bennett gathered all the facts, he provided some alternatives.  Bennett explained to Clyde that he was in a very responsible position as a supervisor and that his recent actions had destroyed his credibility.  Thus, Clyde would be removed from his position as supervisor.  However, Bennett recognized that Clyde had been a model employee up to that point, so he offered him two choices.  Clyde could accept a demotion and continue with the company, or he could resign.  Clyde opted to resign.  Subsequently, Bennett assisted him by arranging for interviews with other employers.  Fortunately for Clyde, another organization employed him shortly thereafter.

Panel:

Bennett is the person who needs brain surgery in this case! Bennett could have completely avoided the entire situation if he had required medical certification before granting the leave of absence. Even under the Family and Medical Leave Act, Bennett had a right to require such proof up front.

Certainly his company should consider requiring pre-certification for hospital admissions.  This action directs the service provider to investigate the proposed procedure.  They typically assess the length of stay as well as determine whether services could be performed at the same quality level at a more efficient, less costly location.  If Bennett had purchased these cost-saving services, Clyde would not have been allowed to continue the charade. 

Human resources staffs routinely call upon health care practitioners.  These practitioners will verify and monitor the progress of treatment for certain individuals if the legitimacy of the illness may be questionable or the nature of the claim is costly.  In the latter case, such monitoring is entirely appropriate.  Many companies may decide to purchase case management services (i.e., a registered nurse who works with the patient and the physician to determine the most cost-effective health care delivery). 

Bennett was correct to request a physician's release before allowing Clyde to return to work.  Without such a release, Bennett would expose the company to substantial liability and possibly workers' compensation  problems by allowing someone who was not well to return to work.

However, Bennett failed miserably in other aspects of this case.  The majority of us feel that Bennett should never have given Clyde the option of demotion and retention as an employee.  Clyde lied on numerous occasions, obtained company disability benefits fraudulently, and violated his supervisory trust by taking money from his subordinates under false pretenses.  He should have been terminated and not permitted to resign.  The company also had a strong case for contesting unemployment and COBRA (Consolidated Omnibus Reconciliation Act) benefits.

Perhaps the most problematic and unfathomable of Bennett's actions were his efforts to help Clyde secure another job.  Bennett's implicit (and probably explicit) endorsement to prospective employers could result in severe negative consequences.  His actions not only tarnish the company's reputation but may also expose the company and perhaps himself to liability if Clyde engages in such conduct at the new employer.

Legal:

Employers may require medical certification from their employees requesting medical leave, whether the leave is requested pursuant to the company's own disability leave policy or the federal Family and Medical Leave Act of 1993 (FMLA). (A large number of states also have family and medical leave laws.)  In this story, had Bennett requested Clyde provide him with appropriate documentation regarding his need for medical leave, the sham may have been exposed a lot sooner–and the company may have been able to retain a good employee and avoid a lot of problems.

When an employee requests a medical leave, such a request generally triggers consideration of the FMLA.  In general, the FMLA requires private employers of 50 or more employees to provide eligible employees with unpaid leave of up to 12 weeks during any 12-month period.  This covers the employee's own serious illness, as well as the birth or adoption of a child or the care of a seriously ill child, spouse, or parent.

The FMLA recognizes that employers must be able to plan and adequately staff their organizations.  For a serious medical condition that is based on foreseeable planned medical treatment, employees must make a reasonable effort to schedule the treatment so as not to unduly disrupt the operations of the employer.  For serious medical conditions that require treatment, employees are required to give 30 days advance notice before the date on which the leave would begin, or if treatment is in less than 30 days, such notice as is practicable.

To prevent employee abuse of leave for serious health conditions, the FMLA authorizes employers to require medical certification of the medical condition.  This certification should include the following: a statement by the employee that he/she is unable to perform the functions of his or her job; date on which the serious health condition commenced; the probable duration of the condition; the appropriate medical facts within the knowledge of the health care provider regarding the condition; and, if an intermittent leave or reduced schedule is required, the date and duration of treatments required.  If an employer doubts the original certification from the employee, an employer may require, at its own expense, a second opinion from a different health care provider chosen by the employer.  If there is a conflict between the first and second medical opinions, a third opinion may be required by the employer, at its own expense, from a health care provider designated or approved jointly by the employer and the employee.  The third medical opinion will be considered final and binding.  An employer may require subsequent recertification from the employee on a reasonable basis and require a fitness-for-duty certification that an employee is able to resume work.

An employee who fraudulently obtains an FMLA leave from an employer has no job restoration and maintenance of health benefits protection under the FMLA.

One final note: we would caution employers against assisting a former employee in finding another job when it knew that the former employee had perpetrated a fraud against the company and his co-workers.

Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©

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