Stop FMLA Leave Abuse

By Paul Falcone
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Abuse of intermittent Family and Medical Leave Act (FMLA) leave unfortunately has become a serious workplace disruption in many organizations. Although well-intentioned, the FMLA’s legal protections have been exploited by an overly aggressive plaintiffs’ bar and workers who sometimes lack the necessary work ethic to meet the day-to-day challenges of the workplace.

Block FMLA leave—when an employee needs to remain out of work for six weeks after surgery, for example—tends to pose few problems. But intermittent FMLA leave too often results from an insidious morale problem where an employee feels entitled to sporadic time off outside of his or her vacation, holiday and personal day benefits.

The matter often goes unaddressed because many supervisors fear engaging in certain discussions about providing written notices regarding the FMLA because of the potential for punitive damages in retaliation cases, as well as the potential for individual liability.

When that ugly trend shows up in your department, you need to address the problem head-on via your company’s corrective action and progressive discipline policy.

Taking Action

The most common area of intermittent FMLA leave abuse lies in the failure to provide appropriate medical documentation or to follow the terms of the existing medical certification. In such cases, your corrective action document should spell out the specifics of the problem and paint a detailed picture of the perceived abuse:

“On Oct. 3, you received a verbal warning for incurring five incidents of unscheduled, unauthorized absence on the following dates: Aug. 4, Aug. 30, Sept. 15, Sept. 25, Oct. 3.

“On Oct. 8, you reached your one-year anniversary and became eligible for FMLA leave. On Oct. 9, you initiated an intermittent FMLA leave by providing a doctor’s note authorizing one to four days off per month, which was granted to you.

“In October, you had taken four days off in accordance with your medical certification, and then took off the following two days: Oct. 25, Oct. 30. You would have normally received a written warning for those sixth and seventh occurrences of unauthorized absence, but you informed me that your doctor would amend the terms of your medical certification.

“In November, you took four days off in accordance with your medical certification, and then took off the following two days: Nov. 21, Nov. 30. This would have normally resulted in a final written warning for nine incidents of unauthorized absence. However, you assured me that you would have a doctor’s note authorizing a block FMLA leave within three days.

“In December, you then took off four days in accordance with your medical certification, but then took off another day on Dec. 17. Normally, this 10th incident would have resulted in your termination.

“It now has been almost two months since you stated that you would provide the appropriate medical certification authorizing either extended terms to your current medical certification or a block leave of absence under the FMLA. As a result of your lack of follow-up, this document will serve as a written warning for failure to provide the appropriate medical certification required to avoid corrective action under our company’s attendance control policy. It will likewise serve as an additional written warning for excessive, unauthorized absence.

“In addition, your current intermittent FMLA leave provides for one to four days off per month to attend to your special needs on an intermittent basis. Unless additional time off is warranted by an updated medical certification, we will honor the current medical instructions and will consider any additional, unauthorized time off subject to the company’s progressive discipline policy. Please note that failure to provide immediate and sustained improvement may result in further disciplinary action, up to and including dismissal.”

Hold Them Accountable

When an employee fails to follow the terms of his or her medical certification, everyone suffers. You simply cannot run a business not knowing if and when people will take time off outside the terms of their current medical certification. That being said, remember that the Americans with Disabilities Act also may apply to a person taking FMLA leave; therefore, you may be required to determine if the employee is “disabled” under the law and whether your company has an obligation to reasonably accommodate that disability.

Hold employees accountable to their current medical certifications and manage these leaves closely. The responsibility for compliance, after all, should lie with your employees and not with you or your company.

Paul Falcone is vice president of human resources at Time Warner Cable in Los Angeles and author of101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination(AMACOM/SHRM, 2010), which is available for purchase at the SHRMStore, www.shrmstore.shrm.org.

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