August 25, 2015
10 Steps to Stop Subtle FMLA Abuse
Rooting out the more subtle types of FMLA abuse takes diligence and tracking leave patterns can be time consuming and expensive. So, how can employers tackle the issue of the abuse of the Family and Medical Leave Act in a legal and effective manner? Here are 10 tips:
- Watch for organizational patterns. Keep an eye out for absences that tend to be concentrated in particular departments or with certain individuals as well as those that occur disproportionately in conjunction with weekends, holidays, or paydays.
- Use an appropriate time frame. Because evidence of a pattern of abuse is usually going to be circumstantial rather than medical, the employer must track such evidence over a long enough period so as to demonstrate that the suspicious absences are due to more than mere coincidence.
- Train frontline supervisors. Teaching supervisors about how the FMLA and your leave policies work should be the first step. Frontline supervisors are the employer’s eyes and ears, and employers depend upon them for information about potential FMLA abuse issues. Providing even thirty minutes of training for supervisors each year is invaluable. At the very least, it will sensitize them to the importance of giving you a heads-up when potential problems arise.
- Always determine eligibility. Once the employer has received a request for leave, the first rule in reducing abuse is to check FMLA eligibility at once. Before assuming an employee is eligible for FMLA leave, take the time to run the eligibility traps. Sometimes employers find themselves first granting FMLA leave, only to later realize that the employee was not eligible for leave. This includes getting a new certification for every new 12-month period an employee seeks/uses FMLA leave.
- Certify, certify, certify. Employers should consistently require certification (and recertification) of the employee’s medical condition. This lets employees know the employer is tracking FMLA absences. Attach the employee’s job description or a list of their essential functions to the certification form so that the health care practitioner can accurately assess whether the employee is truly incapacitated from doing their specific job. Don’t be afraid to seek recertification if the employer learns information raising questions about the stated use of the leave. Be diligent in requiring employees to take leave that’s consistent with their medical certification; don’t make exceptions in sympathetic situations.
- Don’t settle for marginal medical certifications.Require employees to provide satisfactory, detailed, and informative certifications as a condition of FMLA leave. If they don’t do so, the employer should follow up, using all of the tools allowed by the regulations – i.e., requiring the employee to correct the certification and following up with the doctor directly, if necessary and permitted. However, it is generally considered safer to leave the responsibility of obtaining a satisfactory medical certification with the employee.
- Ask the doctor. An effective strategy is to send a letter to the employee’s health care provider, through the employee, describing the pattern observed and asking whether there is a medical reason for it. If the health care provider says, “no,” then the employer may be able to terminate or otherwise discipline the employee. Even if the provider supports the leave pattern, the employee will often change his or her behavior once the employer has taken notice.
- Require adequate notice. Ensure that employees provide enough information to distinguish between planned and unplanned leave. If the employee doesn’t provide adequate notice of planned leave, ask the employee to explain why. The employer can deny leave if the employee doesn’t have a good reason.
- Track and remind. Throughout an employee’s absence, keep track of their use of FMLA leave and remind them from time-to-time how much leave they have used and how much they have remaining. Doing so can be particularly valuable when wrestling with intermittent leave.
- Use periodic updates. Finally, an important strategy – and one that employers frequently overlook – is to exercise the right to require employees to furnish periodic updates on their status and whether and when they intend to return to work. Stay in communication with them to see how they are progressing. Periodic communication with human resources or supervisors makes it more difficult for the employee to abuse their leave.
FMLA Resources Center
FMLA Abuse: What Is and Isn’t
FMLA Tracker: Fixed 12-Month Period
FMLA Instructions for Supervisors