FMLA: What steps can an employer take to limit the abuse of intermittent FMLA leave?

May 11, 2012

FMLA regulations provide tools for employers to limit the abuse of intermittent FMLA absences. Employers should evaluate and understand the regulations, closely monitor FMLA leave for abuse patterns, develop a policy within the guidelines of the regulations, take action with the employee when necessary, and hold the employee accountable for complying with the specifications described in the certification. Enforcing the notice requirements for both foreseeable and non-foreseeable leave is an important tool for curbing abuse. According to FMLA regulation CFR 825.302, an employee must provide 30 days’ advance notice for foreseeable leave whenever it is possible. Employers can also require employees to comply with the company’s customary notification requirements for requesting leave. Therefore, employers should develop clear attendance and call-in policies for all employees’ absences. Absent extenuating circumstances, if an employee fails to follow these policies, an employer has the right to delay or deny the FMLA request. Employers may also request that employees schedule medical treatments that can be planned in advance, such as doctor visits, so that business disruptions are minimized. To curb disruptions at the onset, inform employees of the preferred timing of scheduled appointments based on business need, including day of the week and time of day.

Do not accept vague certifications. The medical certification and recertification regulations can be effective mechanisms to control intermittent FMLA abuse. Employers should develop a policy requiring the use of medical certification to approve FMLA leave. DOL Forms WH-380E and WH-380F are available for this purpose. For incomplete or insufficient medical certifications, list in writing the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies. Employers may also ask permission to contact the employee’s health care provider if the employee is not able to address the deficiencies.

CFR 825.307 indicates the employer may contact the health care provider for purposes of clarification and authentication of the medical certification after the employer has given the employee an opportunity to address any deficiencies. 29 CFR 825.305 outlines the general certification rules.

Hold employees accountable to the terms of the certification. Recertification can be required every six months; however, more frequent certifications are permissible if the circumstances of the original certification have changed. These scenarios include an increase in frequency of absences, if the employer has a reason to doubt the validity of the absence, such as a Friday/Monday absence pattern, or if the employee asks for an extension of the leave. The recertification rules are detailed in 29 CFR 825.308. Along with the recertification, provide the doctor with a list of absences to ensure the absences are consistent with the medical condition.

Also provide the health care provider with a list of essential job functions. This will require the physician to review the essential functions of the job. If leave is taken for the employee’s own medical condition, the certification information must provide medical facts to show that the employee cannot perform the job’s essential functions. A sufficient medical certification must specify what functions of the employee’s position the employee is unable to perform, in accordance with regulations29 CFR 825.308.

Take action if the employee does not comply with the terms of the certification or the notification requirements, and hold the employee accountable. The article “Stop FMLA Abuse” provides sample language for addressing issues that may arise.

While most employees use FMLA legitimately and without abuse, it is important for employers to have an effective FMLA management system in place to deal with the few employees who may abuse the system.

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