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Compliance Corner

10 Helpful Practice Tips for Curbing FMLA Abuse

Aug 3, 2020

10 Helpful Practice Tips for Curbing FMLA Abuse
Paul Kramer

Paul Kramer

Director of Compliance

As time goes by, more and more employers are complaining that employees are abusing leave entitlements such as the federal Family and Medical Leave Act (“FMLA” or “Act”), especially intermittent and reduced schedule leave. For example, many employers say it’s not uncommon to receive higher volumes of intermittent FMLA leave requests around weekends or the holidays, or for numerous employees to suspiciously use the same doctor when substantiating the need for medical leave. Abuse of FMLA leave can be costly for employers, and action is needed to eliminate or at least curb abuse. Below are helpful practice tips organizations should follow to limit employee misuse of FMLA leave and improve their bottom line:

1. Require employees to submit leave requests in writing.

Although oral notice of the initial need for FMLA leave is sufficient, employees should then be required to follow the employer’s usual and customary procedures for taking leave, including requesting the time off in writing. Employees may be less likely to provide a false reason for leave if they must set forth the reason in an official request form.

2. Confirm that the reason for leave is covered.

Before approving FMLA leave, employers should make sure employees are entitled to it. The FMLA applies only to specified leave reasons and many reasons do not qualify. Also, remember that not all employee or family member health conditions meet the definition of “serious health condition” for purposes of qualifying for FMLA leave.

3. Certify and recertify.

Requiring a medical certification is the best practice employers can follow to combat FMLA abuse because it forces workers to substantiate that they (or a family member) have a serious health condition entitling the employee to FMLA leave. Recertification of the employee’s or family member’s health condition should also be requested at the earliest opportunity. The FMLA regulations provide timelines and rules for requesting certification and recertification.

4. Get subsequent medical opinions, if necessary.

If there is reason to doubt the validity of an employee’s medical certification the employer may, and should, request a second opinion at the employer’s expense. A third opinion at the employer’s expense may be requested if the opinions of the employee’s and the employer’s designated health care providers differ.

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5. Substitute paid leave for unpaid FMLA leave.

The FMLA regulations allow employers to require employees to substitute accrued paid leave for unpaid FMLA leave. “Substitute” means that paid leave provided by the employer will run concurrently with the unpaid FMLA leave. Employees may be less likely to abuse FMLA leave if they must burn through their vacation time to take the fraudulent time off.

6. Request appropriate information for intermittent and reduced schedule leave.

FMLA leave for an employee’s own serious health condition, to care for a covered family member with a serious health condition, or to care for a covered servicemember with a serious injury or illness may be taken intermittently or on a reduced schedule if it is medically necessary and the need is best accommodated through intermittent or reduced schedule leave. If employees request time off under these circumstances, employers should inquire why the intermittent/reduced schedule leave is necessary and ask for the treatment schedule.

7. Require temporary transfers or non-disruptive treatment schedules.

Employees on foreseeable intermittent or reduced schedule leave may be asked to temporarily transfer to an alternative position that is more accommodating to the employer’s operations or to schedule medical treatment so as to not unduly disrupt the employer’s business. Employers should take advantage of these options.

8. Deny burdensome leave.

When intermittent or reduced schedule leave is requested after the birth of a healthy child or placement with the employee of a healthy child for adoption or foster care, the leave may be taken intermittently or on a reduced schedule only if the employer agrees. If this non-continuous leave is burdensome for your company, don’t agree to it.

9. Include fitness-for-duty certifications.

Before allowing employees to return from FMLA leave based on their own serious health condition, require them to submit a fitness-for-duty certification. To demand a fitness-for-duty certification, however, employees must be told about the requirement in the designation notice and the employer must have a uniformly-applied policy requiring certification for employees who take other leaves for the same health condition.

10. Prohibit moonlighting.

Institute a policy prohibiting employees from holding a second job while on any type of leave (including FMLA). This may stop employees from taking intermittent or reduced schedule leave merely to make a little extra money on the side.

Simplify the leave process with an an automated leave management system.

These practices can curb FMLA abuse by reducing the number of times managers or HR team members are asked to approve leave requests which they are unsure about. When managers are unclear about FMLA rules, they will likely make leave decisions by weighing the risks of non-compliance (litigation, attorney fees, penalties, etc.) against the costs of granting illegitimate leave (lost productivity, scheduling problems, etc.) rather than on the facts of the case. Employers should simplify the leave process for their decision makers by implementing and following the above practices which will lead to fair, consistent, and compliant leave determinations. Using an automated leave management system to help enforce these practices also is well worth the investment.

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