Q&A Session – Is It FMLA Abuse?


Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.


An employee tells coworkers that he will be taking off for a long weekend, but does not have seniority to receive leave and is on the work schedule for those days. The employee then calls in with an emergency and claims FMLA (Family & Medical Leave) for those same days. Is this FMLA abuse?


The FMLA rules anticipate that an employee request a FMLA absence in advance. Recognizing that this is not always possible, OPM regulations do allow for an employee to request a FMLA absence for a serious health condition for up to 2 days after the employee’s return to duty. The agency may require medical evidence of the serious health condition. Generally, a serious health condition is defined as one night in the hospital or two visits to the doctor for the same condition. Thus, headaches, general malaise, colds and stomach aches that are either not treated by a doctor or only require one visit to the physician’s office do not qualify for FMLA. An employee who claims FMLA without being able to show a serious health condition risks an AWOL (absent without leave) status.

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About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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