Monday, February 6, 2012 is a bittersweet day for employers across New York and elsewhere. Just hours earlier, their employees watched the New York Giants beat the New England Patriots in Super Bowl XLVI. For these employers, however, many of their employees won't be at work Monday morning. The reason? In a 2008 survey conducted by The Workforce Institute at Kronos Incorporated, 1.5 million people will call in sick to work and an additional 4.4 million will call in late. Outplacement firm Challenger, Gray & Christmas has put worker lost productivity from the Super Bowl at more than $820 million.

“There will be lots of workers partying all night,” John Challenger told Bloomberg BNA (subscription required), “either celebrating the team's win or crying in their beer—not ready for work on Monday morning.”

Employers in and out of New York and New England will have to be prepared for the apparent onslaught of call offs the day after the Super Bowl. Many of these employees certainly will use the FMLA as an excuse to recover from the night before. So, what can an employer do to obtain more information from the employee in these situations to avoid FMLA abuse? I remind employers of the same suggestions I offered in this post one year ago:

1. Determine first whether the employee is seeking leave that might be covered by the FMLA. Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it's an absence that clearly does not trigger the FMLA (e.g., "I'm sick," or "My daughter has the flu"), you simply can subject this absence to your usual attendance policies and take action as necessary.

Unfortunately, it's not always that easy. Employees typically are not required to cite specifically to the "FMLA" as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that manifests itself intermittently throughout the year; c) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

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