FMLA leave abuse has always been a significant concern for employers. Furthermore, intermittent FMLA leave, typically taken for chronic health conditions (i.e. migraines or bad backs), lends itself to abuse because it is very difficult to track. According to a study by the Society for Human Resource Management, two-thirds of surveyed HR professionals have reported challenges resulting from chronic abuse of intermittent leave, including morale issues for employees who have to cover for their absent co-workers. Additionally, 80% cited the tracking and administration of intermittent leave as the most difficult activity. Fortunately for employers, there are ways to combat FMLA abuse, including the use of written FMLA policies.
Continue reading for a list of 4 provisions that employers should include in their FMLA policies to limit FMLA abuse…
- Get it in writing. Absent a very unusual circumstance, all employees should be required to document their request for leave on a written request form and return that form to HR. This helps to guarantee that there is no confusion about the type of leave being requested or the dates or circumstances giving rise to the need for leave.
Set up FMLA leave to run concurrently with other types of paid and unpaid leave and require employees to substitute paid leave for unpaid leave, unless prohibited by state or local law. When employees are aware that they will have to use up their paid leave time (i.e., vacation, sick time, etc…) when taking FMLA leave, they are much less likely to misuse FMLA leave. Additionally, requiring concurrent running of FMLA leave and paid leave (when permissible) prevents employees from taking 12 weeks of unpaid FMLA leave followed by additional weeks of paid vacation or other time off. - Require medical certifications and recertifications. Your FMLA policy should clearly describe when medical certifications and recertifications are required – which should be whenever possible. For example, new leave requests, changes in the reason for leave, leave extension, or a pattern of suspicious absences all mandate an updated medical certification.
- Maintain firm call-in procedures. The FMLA regulations make it clear that (absent a few exceptions) employees must comply with an employer’s “usual and customary” notice and call-in procedures. An employer can take advantage of this by implementing a clearly drafted call-in policy. This policy, which must be strictly enforced, can specify the amount of advance notice that is required when reporting an absence, the person to which the absence must be reported, what information must be provided, etc… As a result, employees who fail to consistently comply with internal procedures place themselves at risk of having their leave requests delayed or denied.
- Require employees to sign an acknowledgement regarding their absences. In most circumstances, the FMLA forbids employers from asking for a medical certification or doctor’s note in connection with every FMLA absence. However, after each absence, employers may require employees to sign a personal statement which reiterates that the employee took the time off for a FMLA or other medical reason and acknowledges that the employee may be disciplined or terminated for providing false information to the employer. Require this from all employees returning from any type of medical leave in order to avoid potential claims that employees using FMLA leave are treated differently from other employees.
For more information on FMLA leave and other types of paid and unpaid leave, including how to handle employee leave requests, contact experienced business attorney Drew E. Pomerance today.
