Preventing employee abuse of FMLA leave is a growing concern for employers. FMLA abuse can be very costly to employers in terms of lost productivity. It also places additional burdens on those employees who must take on the responsibilities of the absent employee to keep up with workflow.
The following are guidelines that can help to reduce the likelihood that employees will abuse FMLA leave.
1. Make Annual FMLA Training for Management Staff a Priority
Managers and supervisors are typically the first line of communication for employees when the need for leave arises, so the more knowledgeable they are regarding the FMLA, the more quickly they can identify instances of abuse. To help curb FMLA abuse, be sure your management staff receives training every year on the FMLA, including a review of key requirements under the law, such as what constitutes a "serious health condition."
It would also be prudent to reevaluate your company's attendance and leave policies at this time and to remind your managers and supervisors about the need to maintain confidentiality with respect to any medical information they receive in connection with an employee's FMLA leave request.
2. Choose a Method of Determining the Applicable 12-Month Period Carefully
An employer is permitted to choose any one of the following four methods for determining the "12-month period" in which the 12 weeks of leave entitlement occurs, so long as the alternative chosen is generally applied consistently and uniformly to all employees:
The calendar year;
Any fixed 12-month "leave year," such as a fiscal year;
A "rolling" 12-month period measured backward from the date an employee uses FMLA leave; or
The 12-month period measured forward from the date any employee's first FMLA leave begins.
The calendar year method and the fixed leave year method are both subject to a certain degree of abuse since neither method would prohibit an employee from taking FMLA leave in the last 12 weeks of one year immediately followed by leave in the first 12 weeks of the succeeding year. The rolling method and the "measured forward" method are less likely to be abused in this way.
3. Apply Attendance Policies Consistently
An employer's regular attendance policies apply to persons out on FMLA leave in the same manner as to all other employees, absent unusual circumstances. If you require employees who are absent to call a specific person by a specific time, an employee taking FMLA leave because of a sudden emergency or an immediate need for intermittent leave is generally subject to these same reporting policies. Note that the employee need not mention the FMLA when requesting leave to meet the notice requirement, but may only explain why the leave is needed.
Your policies must also be applied uniformly to all employees. If you've been lax with call-in requirements and then tighten up enforcement for an employee requesting FMLA leave, you may subject yourself to allegations of unlawful discrimination or retaliation.
4. Require Employees to Submit Medical Certifications and/or Second Opinions to Support the Need for Leave
You may require an employee who requests FMLA leave for his or her own serious health condition or that of an immediate family member to support the request with a medical certification issued by a health care provider. If you find there is not enough information in the certification to make an FMLA determination, you should identify the specific information which is missing in writing and give the employee seven calendar days to provide the required information. Employees who have received notice of the certification requirements and who fail to provide proper certification may have their FMLA leave delayed or denied.
You may also, at your own expense, require these employees to obtain a second medical certification from a health care provider. You may choose the health care provider for the second opinion, except that in most cases you may not regularly contract with or otherwise regularly use the services of this health care provider. If the opinion of the employee's designated health care provider differs from that of your health care provider, you may require the employee to obtain certification from a third health care provider, approved jointly by you and the employee, and again at your expense. This third opinion is final and binding.
In the case of a qualifying exigency related to military personnel, you are generally permitted to request a copy of the service member's orders or other documentation to support their need for leave.
5. Require Employees to Submit a Recertification for Absences
An employer may request periodic recertifications for FMLA absences. Generally, you may request a recertification no more frequently than once every 30 days. However, if the initial medical certification states that an employee is unable to work for more than 30 days, you may not request recertification until the end of that longer period. Regardless of the duration of the leave, however, an employer may seek recertification every six months.
In some cases you may request recertification more frequently, such as when there is a request for extension of leave, circumstances described by the previous certification have changed significantly (such as the duration or frequency of the absence, the nature or severity of the illness or complications) or if you receive information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification.
Note that any recertification you request is at the employee's expense unless you provide otherwise. No second or third opinion on recertification may be required.
6. Require Employees to Use All Paid Leave Prior to Taking Unpaid FMLA
If the terms and conditions of your normal leave policy permit, you may require employees to use all paid leave (such as sick and vacation leave), before taking unpaid FMLA leave. Note also that FMLA leave and workers' compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employee is properly notified in writing that the leave will be counted as FMLA leave.
7. Be Careful When Permitting Intermittent Leave or Reduced Schedules
The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. Employers should be vigilant in their recordkeeping to ensure that no employee is taking leave beyond that which is legally required. The law provides some guidance for employers to control the impact of intermittent leave on business operations and to limit potential abuse:
If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations. Such scheduling is, however, subject to approval of the employee's health care provider.
Employers may give the employee's health care provider a job description of the employee requesting leave so that the health care provider has objective data upon which to determine what the employee can and cannot do.
Employers should develop user-friendly, informative medical certification forms that gather as much information as the FMLA permits. (Model certification forms are available from the U.S. Department of Labor for use in obtaining medical certification from health care providers that meet the FMLA's certification requirements.)
Employees taking intermittent leave may be assigned to alternative positions. When an employee requires intermittent leave, you may assign the employee to an alternative position for which the employee is qualified for the period of intermittent leave to reduce disruption that might otherwise be caused by the leave. The alternative position must have equivalent pay and benefits, but need not have equivalent duties.
8. Notify Employees That You Will Require "Fitness-for-Duty" Certifications Upon Return from Medical Leave
Employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted. Keep in mind that if you require a fitness-for-duty certification from one employee, you must require each similarly-situated employee (i.e., same occupation, same serious health condition) who takes leave for this condition to obtain and present certification from his or her health care provider that the employee is able to resume work.
An employee who fraudulently obtains FMLA leave from an employer is not protected by the law's job restoration or maintenance of health benefits provisions. If you suspect an employee has taken FMLA leave for a false reason or is otherwise abusing the benefit, you may wish to discuss your findings with the employee first, giving him or her a chance to explain the circumstances, prior to taking any disciplinary action. Whatever action you decide to take in a particular situation, keep in mind that it is in your company's best interest to notify your employees that abuse of FMLA leave is grounds for discipline before the abuse occurs.
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