Viewpoint: 10 Ways to Fight FMLA Abuse in the Summertime

With the increase in summertime temperatures comes an increase in Family and Medical Leave Act (FMLA) abuse—when it's 82 degrees and sunny outside and we're headed toward a weekend, employees find it hard to work. We cynics don't call it the Friday Monday Leave Act for nothing.

Fortunately for employers, there are several ways available to combat FMLA abuse. Here are 10 that have worked for me:

1. Require employees to complete a written leave request form for all absences.

Although an employer cannot deny FMLA leave if the employee provides verbal notice of the need for leave and they articulate an unusual circumstance as to why they could not follow proper procedures, requiring the employee to put a leave request in writing and return it to HR tends to deter them from gaming the system.

2. Prepare a list of probative questions to ask all employees when they request time off.

You have the right to know why your employee can't come to work, so prepare a list of questions to ask your employees when they call in an absence. These will help you to better determine whether FMLA is in play and if the request might be fraudulent:

• What is the reason for the absence?
  

• What essential functions of the job can they not perform?
  

• Will the employee see a health care provider for the injury/illness?
  

• Have they previously taken leave for this condition? If so, when?
  

• If they are calling in late in violation of the call-in policy, when did the employee first learn he/she would need to be absent? Why did they not follow the Company's call-in policy?
  

• When do they expect to return to work?
  

3. Enforce call-in procedures.

Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., "one hour before your shift"), to whom they should report the absence, and what the content of the call off should be.

If you don't have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.

4. Certify … and recertify!

One of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, too many employers fail to obtain from the employee (or fail to do so in a timely manner) the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave.

Keep your employees honest—require them to certify their absence and seek recertification at the earliest opportunity. Require medical certification to initially verify the serious health condition, upon the first absence in a new FMLA year, and when the reason for leave changes.

5. Use the "cure" process when following up on verification.

Where the medical certification form does not sufficiently answer the questions posed on the form or the health care provider's responses tend to raise doubts, employers should immediately communicate with the employee to cure the deficiencies and/or shed light on any suspect information provided in the form.

In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies. Here, you might consider asking questions that probe further into the information you find particularly suspect. Seek clarification whenever the certification remains incomplete or insufficient.

Additionally, consider using a physician or a nurse to contact the employee's health care provider on the employer's behalf (but remember: you must have the employee's permission to contact the employee's health care provider).

6. Have employees complete a personal certification.

On return from any leave of absence (FMLA or otherwise), ask the employee to complete a personal certification to confirm that they actually took leave for the reason provided. The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records.

In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document. My recommended form looks like this: 

7. Check in on your employees and make them stay put.

Want to be really aggressive but operate within the law? I have a handful of clients who explicitly tell employees that it is their policy to check in on the employee if they are using paid sick leave, and then they actually check in on them. Taking this one step further, some employers require their workers to remain in the immediate vicinity of their home while they are recuperating. If they don't follow this policy, they face discipline. Think this tactic is illegal? Think again. One court already upheld this very approach.

8. Follow up on patterns of absences.

Seeing an awful lot of Monday/Friday absences from an employee? Or are they consistently taking days off around a holiday to extend time off? These situations smack of FMLA abuse. Employers that witness a pattern of absences over even a modest period of time (e.g., over a series of weeks or in back-to-back months) arguably have the right to reach out the employee's physician. Follow the FMLA regulations (29 CFR 825.308) and ask the employee's physician to confirm whether the pattern you're witnessing is consistent with their serious health condition and their need for leave.

[SHRM members-only forms: FMLA Notice of Eligibility and Rights & Responsibilities]

9. Stress that medical treatment should be scheduled when it's least disruptive of business.

Require that employees make a reasonable effort to schedule medical treatment around your business operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment and the employee's preference is smack dab in the middle of the workday.

10. Conduct a comprehensive audit of your FMLA practices.

Work with your employment counsel to ensure that your FMLA policy and forms are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the author of the FMLA Insights blog, where this article originally appeared. © 2018 Jeff Nowak. All rights reserved. Republished with permission.

Related SHRM Articles:

Employee Must Follow Call-In Procedure for FMLA Leave to Be Protected, SHRM Online Benefits, July 2018

What If Employees Are Absent Beyond What Their FMLA Certification Allows?, SHRM Online Benefits, April 2018

If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?, SHRM Online Benefits, September 2017