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Minimizing FMLA Abuse
 

By Dolly Clabault, J.J. Keller & Associates Inc.  2/14/2011
 

The Family and Medical Leave Act (FMLA) is an employee entitlement, and sometimes employees believe that it entitles them to take off from work for almost any reason at almost any time. Some even might see it as a safety net in case their vacation request is denied.

Employers have long decried abuse of the FMLA, but there are actions they can take to help minimize such abuse.

Double-check eligibility
When employees request time off, make sure they are eligible for FMLA leave. Some courts have ruled that if employers represent that an employee is eligible for FMLA leave and the employee acts based on that representation, the employer would need to honor such eligibility. Ensuring eligibility can minimize such risk.

Enforce the notice requirements
FMLA regulations indicate that employees are to provide at least 30 days’ notice when the need for leave is foreseeable, or at least as soon as is practicable. Employees should be held to this. If they fail to provide appropriate and timely notice, FMLA coverage may be delayed. Of course, employers will need to act depending on the particular facts and circumstances involved in the situation. If an employee could not provide notice, that would need to be taken into consideration.

Enforce your company call-in procedures
Employers may enforce company call-in procedures when an employee takes FMLA leave—even when the leave is not foreseeable. Employees are to comply with the company’s usual and customary notice and procedural requirements for requesting leave unless there are extenuating circumstances.

If employees do not follow the company policies/procedures, FMLA coverage for the absence may be delayed or denied. Again, any unusual circumstances would need to be considered.

Ensure that the reason for leave qualifies
Eligible employees may take FMLA-protected leave only for qualifying reasons—including for a birth, an adoption or foster care; for an employee’s serious health condition; for the serious health condition of an employee’s family member (including serious injury/illness because of military duty); and for a qualifying exigency (specific non-medical-related military duty).

In addition, it helps to ensure that when employees are taking time off because of a serious health condition (theirs or that of a family member), the condition meets the regulatory definition. This can be a challenge, but a certification supporting the need for leave can help.

Require certification
Employers are not required to request a certification but are allowed to do so, and doing so can put some of the FMLA burden on employees. It might help to highlight the area of a medical certification where it indicates that “terms such as ‘lifetime,’ ‘unknown,’ or ‘indeterminate’ may not be sufficient to determine FMLA coverage,” to help ensure that the health care provider sees it.

Review certifications carefully
Once a certification is received, it should be reviewed carefully. Employers will want to know why the employee will be absent, when and for how long, and the employee can be held to the information. For example, if a certification indicates that an employee is to miss two days per month and the employee wants to take more time off than that, this may be reason enough to take action.

The certification should include a minimum duration of the condition, which may indicate how long to wait to request a recertification, if needed.

Ensure that certifications are complete and sufficient
All the appropriate fields on a certification should be completed, and the information should not be vague, ambiguous or nonresponsive. If these conditions are not met, the certification can be returned to the employee, who is asked that it be made complete and/or sufficient. The employee would then have seven calendar days to return it.

Request second opinions if a certification’s validity is doubtful
If a certification’s validity is doubtful, a second opinion can be requested. Employers may choose the health care provider for the second opinion, but employers are to pay for the second opinion.

Recertify
Like certifications, recertifications can provide valuable information. Recertifications can be requested every 30 days or when the minimum duration of the condition expires. However, they may be requested in fewer than 30 days if:

The employee requests an extension of leave.

Circumstances described by the previous certification have changed significantly.

Information is received that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

If an employee is absent beyond what’s indicated, it could be argued that circumstances have changed significantly. This is helpful when an employee has what might be an abusive pattern of absence, such as being absent on Mondays and/or Fridays. In such situations, a recertification request may include a rundown of the absence pattern and may ask the health care provider to indicate whether or not the pattern is consistent with the condition.

If it is learned that an employee might be abusing FMLA leave—casting doubt on the reason for the leave—a recertification may be requested.

Require a fitness-for-duty certification
Before requiring a fitness-for-duty certification when an employee returns to work, the employee needs to be made aware of this requirement—in the designation notice. If the health care provider is to make the exam with a focus on the employee’s particular job duties, a list of the essential functions needs to be included with the designation notice.

If an employee does not provide a fitness-for-duty certification, job restoration may be delayed until one is received. If the employee does not provide such a certification, the employee no longer has a right to reinstatement.

Require employees to provide status reports
Employees may be required to report periodically on their status and intent to return to work. There is no clear definition of “periodically,” so caution is suggested. Requests for such reports need to take into account the facts and circumstances related to a leave situation, so avoiding a blanket provision of how often such reports are to be provided is prudent. Such a practice cannot be discriminatory, either. Asking for reports every week might be seen by employees to be invasive and might incite a claim.

Document all absences
In the world of employment law, any action worth taking is worth documenting, and such documentation can support the action in the future if needed. All absences, including vacations and vacation requests, should be documented. That way, such requests can be compared with requests for FMLA leave to help detect the possibility of abuse.

Talk to employees if abuse is suspected
If an employee is suspected of FMLA abuse, he or she should be confronted with what facts and concerns are available. Employers should avoid acting solely on hearsay, but if there is reason to suspect problems, digging deeper might uncover some facts. The employee should be allowed to explain. Employers may indicate that the law was put in place for employees who truly need time off for certain reasons, and company policies might be added to the discussion to ensure that the employee is aware of them.

Train managers and supervisors
The more eyes and ears available to identify possible abuse, the better. Managers and supervisors should know the basics of the law, such as qualifying reasons for leave and the notice provisions. It might help the company avoid risks if supervisors are made aware that medical information is to be treated as confidential.

Although the FMLA is an employee entitlement, there are some tools employers can arm themselves with to help minimize abuse of the entitlements. Most of these tools require little effort but can pay off in the long run. Using any of them can send a message to employees that the FMLA isn’t there to be abused but is there for employees who really need to take time off.

Darlene "Dolly" Clabault, PHR, is senior editor-human resources at J.J. Keller & Associates Inc. and contributing editor of the firm's BottomLine Benefits & Compensation newsletter.

Related Articles:

Steps to Limit the Abuse of Intermittent FMLA Leave, SHRM HR Q&As, February 2011

Coordinating Leaves of Absence, SHRM Research, February 2011

How to Approve or Deny the Request for FMLA Leave, SHRM Tools and Templates, May 2010

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