Unfortunately, there is not much recourse. FMLA is similar in "good intentions-unforseen consequences/abuse" aspects to the ADA (American Disability Act)...good intentions, much abused.
But, it is never too late to begin documentation, which is what you need to do for just cause termination. Ensure you have the job description written correctly, and hold her to it in her evaluations.
My sympathies. A tough situation indeed.
Document any and all aspects of inadequate performance of job duties when she's actually there - and terminate based on failure to perform job duties.
How can someone abuse FMLA? The law is the law. Either she is following it or not?
As a retired employee of ATT I observed instances firsthand of FMLA abuse. All it takes is a willing doctor. If invoked properly there isn't much an employer can do. Document, document, document...
There are even books(user manuals) on how to maximize FLMA. It lowered workplace morale when we saw people getting time off with pay for no good reason and management could/would do nothing to change it. Good luck!
your company has to contact her doctor in order to find out her limitations and responsibilities. Conditions either improve and, or worsen as far as her reasons to be on FMLA. Her job title (not pay) could change and there are guidelines to follow
Doogle
You want some legal advice? Do not solicit legal advice on the internet.
It's not that difficult to document a pattern of ON THE JOB abuses and non-performance. As long as the individual is not on FMLA leave, FMLA doesn't matter. Remember, FMLA is the Family Medical LEAVE Act. It says nothing about protecting poor job performance.
As for FMLA, it's fairly well defined as to the obligations of the employee. If the employee doesn't meet the requirements or fulfill their obligations, they lose FMLA protections. I've personally held hundreds of employees to the fire about their obligations (documentation, notice, etc.) and I've only had to discipline a few.
How do you abuse the FMLA act??? Do you mean she uses the FMLA act???
You have recourse...You can deny her doctor's opinion...Send her to your doctor (at your expense)...If she disagrees with your doctor, she goes to a neutral doctor whose determination is final...
Fire human resources. Its obvious they haven't aligned their goals with those of the rest of the organization.
Key her car, spread nasty rumors about her and leave a bag of flaming dog dooty on her front porch. That'll teach her!
Seriously<
There are people out there who will abuse any system, anytime, anyway they can devise. Just look at welfare in general.
Here is what I see as a physician. A patient comes in and tells be they were sick last week with nausea and omiting so sick they did not go to work all week. If they were so ill why did they not come to the office or the ER if they were so sick to miss a whole week. Never mind of coarse they are well now but before they can go back to work I need to fill out their paper work. Do I think they are lying. Of coarse. Does the paper work get filled out YES. Do they get to keep their job yes. Do some do this over and over yes. It is like every other government program it is abused ALOT. Now the Democrats want to make it payed leave which was their plan all along when they passed the intrusive bill in the first place. What do you thing public opinion will be. Of coarse they will want to be able to take 12 weeks a year off payed. Will it be abused even more Yes. Will employers hire less people Yes they will have to. It is ridiculous.
(c) SECOND OPINION.--
(1) IN GENERAL.--In any case in which the employer has reason to doubt the validity of the certification provided under subsection (a) for leave under subparagraph (C) or (D) of section 102(a)(1), the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (b) for such leave.
(2) LIMITATION.--A health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employer.
(d) RESOLUTION OF CONFLICTING OPINIONS.--
(1) IN GENERAL.--In any case in which the second opinion described in subsection (c) differs from the opinion in the original certification provided under subsection (a), the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified under subsection (b).
(2) FINALITY.--The opinion of the third health care provider concerning the information certified under subsection (b) shall be considered to be final and shall be binding on the employer and the employee.
If you think this employee is defrauding your company, you should request a second opinion and, if necessary, a third opinion, as stated above.