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Curbing Intermittent Leave Abuses

Not tracking sporadic leave and other FMLA missteps can be costly

April 8, 2014 | Stephen Miller, CEBS

Tips to curb abuses of intermittent time off under the Family and Medical Leave Act (FMLA) were offered at the 2014 FMLA/ADAAA Employer Compliance Conference, held March 31-April 2 at National Harbor, Md. The conference is presented annually by the nonprofit Disability Management Employer Coalition (DMEC).

"Leave taking in separate blocks due to a single qualifying reason, from migraine headaches to panic attacks, requires employers to deal with highly unpredictable start and stop times," said attorney Paul Kramer, director of compliance at WorkForce Software, during a conference session. His ideas for reducing leave policy abuses included:

Tracking

"If you're not tracking employees’ intermittent leave, it could be costing you money," Kramer said. Tracking can unveil evidence of several employees using leave notes signed by the same doctor (who may be viewed as a "friendly" physician by employees or who is someone's family member) or workers repeatedly requesting unplanned leave around weekends.

Employers can follow up by asking the physician to clarify the need for leave (which lets the doctor know you're aware of a possible pattern of abuse) and speaking with employees about why their headaches or attacks occur so often on Friday afternoons or Monday mornings, or around paydays and holidays.

Another red flag: absences concentrated in particular departments.

"Track FMLA usage long enough to distinguish pattern from coincidence," Kramer recommended.

Written Requests and Responses

As a matter of policy, "ask that employees submit all leave requests in writing," which can include e-mail, Kramer advised. Even though the FMLA permits employees to make verbal requests, these often lead to conflicts about what was actually agreed to. "Dishonesty is more difficult when a signature is attached," Kramer said.

Prepare a list of questions to ask employees when they request leave. Queries can include:

The reason for the absence.
The duties they are unable to perform.
When they first learned they would need to be absent.
Whether they will be seeing a doctor.
The employee's expected return date.

"Request that employees answer these questions in writing," Kramer said.

Medical Certifications

The FMLA provides employers with the option of requiring medical certifications, and Kramer called these "arguably the best tool for curbing abuse. "Watch for incomplete or incorrect forms" filled out by health providers, he advised.

Lisa Scotton, vice president for medical vocational services at Lincoln Financial Group also addressed the issue of certifications. "Keep direct line managers out of it," she cautioned, because "the FMLA says you must use an HR professional, a leave administrator, a management official or another health practitioner" to contact the provider.

"Press doctors for their best estimate of leave start and stop dates, and what duties the employee can and can't perform," she added. "Ask them to clarify instructions such as time off 'as needed' or 'to be determined.' "

Second and Third Opinions

Seeking a second opinion at the employer's expense "might cost you money but could be a good investment," Kramer added. Be careful to choose an appropriate specialist. If there are disagreements between the first and second opinion, employers can send the worker for a third, binding opinion.

Job Descriptions

Physicians don't know the employee's job description; they only know what the employee tells them, Kramer and Scotton agreed. So attach an up-to-date job description to the FMLA leave form.

Define essential duties and functional requirements of the job. Potential job modifications can also be documented for current or future accommodation considerations.

Return-to-Work Issues

"Monday is not a magical day to return to work," said Scotton. While doctors often indicate a Monday return because it's the start of the workweek, "it can be better to return the prior Wednesday and ease back with just three days of work," she advised telling doctors.

When appropriate, require fitness-for-duty certifications before the employee returns from leave. Ask the doctor to limit fitness-for-duty to the specific health condition that caused the leave and communicate this requirement in the designation notice, Kramer said. This can avoid situations in which employees decide, after returning, that they weren't ready to come back after all.

Moonlighting

"Establish a policy prohibiting additional jobs while on any form of leave," Kramer instructed. This protects employers by deterring employees from taking leave to earn additional income, and allows for disciplinary action if the employer feels it's necessary. Because the FMLA does not address moonlighting, "your policies shape your practices," he said, and "the policy should be in writing."

Combined Forms

When FMLA leave overlaps with short-term disability (STD) payments, using a combined FMLA/STD form can be appropriate in some circumstances, Scotton said. "Combined forms can be more efficient and cost effective" than relying on the doctor (or, more likely, an assistant in the doctor's office) to fill out separate forms. Also, some doctors charge employees per form, sometimes up to $50, she pointed out.

Stephen Miller, CEBS, is an online editor/manager for SHRM.

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