In the Trenches: Acme discovers a case of faked disability they should have seen coming

Aug. 27, 2007
An Acme employee claims disability leave for an injury that doesn't exist, after her requested vacation time is denied. Why did she do it? To marry a coworker. Find out the details in this month's In the Trenches and remember, only the names are changed to protect the innocent.

Summer is the wrong time to be indoors working for the man. That motto says everything you need to know about the corporate culture at the old Acme plant. Think heavy industry -- hot, dusty, noisy. It’s no wonder employees there have raised hooky to an art form. And, the man continues to think he knows what’s going down.

Like most companies, Acme has two main forms of paid time off – vacation and disability leave. Full-time exempt employees become eligible for both after they’ve been with the company for 91 calendar days.

Anyone wanting to take some vacation time must submit properly countersigned vacation request forms, in triplicate, to the scheduling department. Getting one’s supervisor to sign the forms isn’t difficult, as most supervisors spend a good part of each day signing all manner of paperwork necessary to grease the wheels of industry in this near-Paleolithic plant. After a few months of writer’s cramp, most supervisors no longer pay close attention to what they’re signing.

Then, after due consideration and sufficient delay, the scheduling department grants vacation time on the basis of seniority, which determines both the amount of time granted and exactly when it can be used.
Disability leave, on the other hand, requires an employee to have a doctor submit a letter, in triplicate, to the HR department to certify that the employee is indeed disabled and, more importantly, unable to work.

Employees who qualify for disability leave automatically qualify for FMLA leave, as long as both leaves run concurrently.

Ever since that night shift they met on the plant floor, Shirley Eugeste and Ken Nelkopf have been a couple. They consistently try to arrange reasonably identical vacation schedules. Simultaneity, though, is nearly impossible because Ken, with 30-plus years of seniority, generally has no difficulty getting his choices approved without question. Although Shirley requests the same weeks, having only six years on the job, she finds herself in competition with many other short-tenure employees, all of whom want the best vacation schedules.

In the last round of Acme’s vacation lottery, Ken got approval for his five preferred week-long vacation periods because he was clever enough to spread them over the year. Shirley, however, was granted only one of the three weeks to which she was entitled. Fortunately, that week matched one on Ken’s schedule.
With a sense of overwhelming love and affection, Shirley requested a one-month disability leave that overlapped the two one-week vacations that were denied her through the scheduling department, the same two weeks that Ken would be on vacation. And, the HR department granted Shirley’s medical leave well in advance of when it was to commence.

It was a full day after Shirley started her medical leave that the paperwork from HR reached the desk of Lee Vyjeens, Shirley’s supervisor. Initially, Lee thought the paperwork merely explained why Shirley was absent yesterday and today. But then she realized two things. First, Shirley would be out for the next four weeks and, second, the dates of this medical leave encompassed the dates Shirley requested for vacation time earlier in the year. This curiosity jogged Lee’s memory. She checked her records from the previous year and noticed that Shirley was on disability leave that year, too, and for the same reason, an ankle injury sustained while exercising on a treadmill. And, like this year, the disability leave corresponded to one of Shirley’s requested, but denied, vacation leaves.

Lee took her suspicions to Acme’s HR department for advice on what to do when Shirley returns to work.

The discussions took a right turn somewhere, which resulted in Acme hiring a private detective to find out what Shirley was doing. Within 48 hours, the investigator returned with an uncut one-hour video showing Shirley playing second base in a coed softball league game.

Acme’s HR department interpreted the video to mean that Shirley was engaged in an activity that was somehow inconsistent with a claim of ankle injury. Lee was instructed to suspend Shirley without pay upon her return to work pending an investigation into whether Shirley falsified company records, in triplicate, which was, according to the company handbook, cause for termination.

At the hearing the next month, Shirley offered no reason why she shouldn’t be terminated and admitted that she and Ken flew to Nevada, where they were married in one of those charming roadside chapels.

How could this situation have been avoided? Now that it hasn’t, how should Acme respond to it? Is Acme’s vacation policy the root cause of the problem? Is Acme’s corporate culture part of the problem? Does it make sense to get romantically involved with a coworker? Should Acme modify its employee handbook in response to this case? Should the paperwork flow be improved since Lee did not receive the information in time to deny the initial request, which would have avoided the problem altogether?

A corporate consultant says:

Although it's possible that this specific instance may have been avoided if x, y or z had or hadn’t happened, the root cause here is Shirley's deceitfulness. Having demonstrated that she's willing to misuse the company benefits, defraud the benefits provider, falsify records, elevate her wants above equally deserving coworkers, and then lie about it all, more than once, would eventually result in additional “deceptions à la Shirley.”

Sure, if Acme's paper flow were structured such that Shirley's leave requests would have reached her supervisor in advance, this particular case might not have occurred. But even if her supervisor found out in advance and prevented Shirley from taking the time off, this wouldn't have changed the facts of Shirley's dishonesty. And perhaps the employee handbook should be modified. However, there’s absolutely no question that Shirley intentionally deceived Acme and other parties to get her way.

If Acme expects its policies to be followed, Shirley must be terminated. Retaining her, regardless of her skill level, would send the message that policies are only going to be randomly enforced. This would make Acme vulnerable to claims of discrimination if all others don't get the same consideration.

Whatever one's position on workplace romance, it doesn't necessarily follow that either party will lie, defraud or cheat. This case isn't about office romance, and shouldn't be broadened to include those involved in office romances. This case is about the manipulative, deceitful behavior of one individual. It brings to mind a quote from the wise and gifted Maya Angelou: “When someone shows you who they are, believe them...the first time.”

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
[email protected]

An academician says:

Sick days and disability leaves are recurring problems in most organizations. And they can be expensive. I don’t understand Acme having only two forms of paid time off – vacation and disability leave.

Most companies have vacation days and sick days, both paid up to a specific limit. Disability is a different category as it implies being off of the job for an extended period and when returning, the employee may need special accommodation.

Let me talk a bit about sick leave, which is probably what Shirley should have taken if Acme had such. Companies have developed a variety of programs to avoid some of the disruptions that illness and disability cause. For example, some companies allow the employee so many “personal days” or “doctor days,” which the employee simply takes as needed – no explanation needed. This avoids the employee having to lie about being sick when they just want to handle some personal business.

Other companies eliminate these distinctions by giving the employee a fixed number of paid days each year to be taken anyway they want. They could be vacation, could be sick days, and could be personal days. The employee need provide no explanation. Once the days are used up, that’s it.

Other companies allow employees to “save up” vacation or sick days, for which they receive a cash award at the end of the year. This avoids the perception by employees that sick days are simply free days with pay that have to be taken every year even if you aren’t sick.

Companies have invented numerous rules. For example, no vacation or sick days are allowed before or after a paid holiday. No sick days can be taken in conjunction with vacation days. And there’s always a limit to the number of sick days one can take each year (with or without pay). Some companies want a doctor’s note and other companies couldn’t care less. The point is that this is a recurring issue and a variety of solutions have been developed to try to reach a policy that is fair and humane to both the employee and company.

As to Acme’s problem, I’m a little surprised that Acme doesn’t have sick days as distinct from disability days. Sick days usually are for short-term illnesses, and disability is more long-term problems. What if an Acme employee has a bad cold? Do they go on disability leave? And I’m concerned that HR granted Shirley’s medical leave “well in advance of when it was to commence.” How did they (or she) know she was going to twist her ankle on a specific date in the future? Further, disability leave usually requires a medical exam by a doctor (or two) designated by the company, not Shirley’s doctor. And notifying the supervisor after the leave starts is just plain dumb. How can a supervisor do any resource planning?

Sounds a little weird, doesn’t it?

Acme needs to rethink its policy on sick and disability leave (the vacation policy looks good). Acme needs to separate the medical concerns (sickness and disability) as there are different legal consequences. Sick leave requires no documentation. Disability leaves need loads of documentation from more than one medical source. And the procedures likewise need to be reengineered to correct for the obvious problems.

As for the romance between Shirley and Ken, nothing wrong with a little office romance as long as it doesn’t fall into the harassment or preferential treatment category. I’m happy that they found each other, and wish them a happy future.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
[email protected]

An attorney says:

Hooray for Acme! Someone finally got it right, or perhaps, more accurately, two someones - an alert supervisor and human resources. Whether or not Shirley liked or agreed with the way in which Acme approved vacation requests, she engaged in an act of dishonesty, which almost always merits capital punishment in the employment arena, that is, termination.

Most employers recognize they need an equitable way to approve vacation requests from employees. Certain times of the year are more popular than others, such as the summer holidays and the Christmas and Thanksgiving holidays. That too many employees can’t be absent at one time remains an industrial fact of life.

Granting vacation requests on the basis of seniority is the most common approach. If two employees wish to take vacation at the same time, and the employer can’t continue its operations in a satisfactory manner if both of those employees are absent, the employee with the greatest seniority normally prevails.

While Shirley didn’t like this system, one wonders how pleased she would have been had Acme allowed an employee with less seniority than she to take vacation the week both she and Ken obtained.

The only way Acme could have avoided the problem was to tell Shirley that she had the option to trade vacation times with another employee. Assuming a coworker was willing to do so, Shirley might have been able to arrange a time to run off to that wedding chapel with her guy and still maintain her job.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
[email protected]

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