This scenario will sound familiar. An employee was certified for 12-weeks of Family and Medical Leave Act (“FMLA”) leave to be used intermittently over the course of a year. The purpose of the leave was to allow her to recover from recurring migraine headaches (a very common reason for intermittent leave under the FMLA). She repeatedly took leave throughout the year. However, rather than decreasing, her use of leave increased to the point that the employee was gone more frequently than originally anticipated by her health care provider. Suspicious of her frequent absences, her employer hired private investigators to observe her activities when on FML. She was discharged from employment after the investigators videotaped her engaging in a variety of activities inconsistent with someone who was supposed to be too sick to work.
To many of you reading this article, this problem will sound familiar, and you will not be surprised to learn that it is a real case. But do employers really have to hire investigators to stop this kind of FML abuse? The purpose of this article is to provide you with quick tips that can help reduce your headaches over FML abuse.
Tip 1: Enforce Notice and Call-In Requirements
With respect to unexpected absences, FMLA regulations require that an employee comply with an employer’s usual and customary notice and procedural requirements absent unusual circumstances. Most employers have policies that require employees to call in to report unexpected absences within a certain amount of time prior to or following the beginning of the employee’s work shift. Some employers even have a specific number that employees are required to call, or specifically state that an employee must speak to a specific person and may not leave a message on voicemail.
Regardless of which policy you have, FMLA regulations require that an employee comply with an employer’s usual and customary notice and procedural requirements. An employee who fails to do so, even if the employee is on intermittent leave, may be subject the usual disciplinary measures, unless there was some reason which rendered the employee unable to comply with the policy (such as hospitalization). Employers are allowed to lawfully discipline and discharge employees who either (1) fail to comply with notice requirements; or (2) are dishonest about the reasons given for the need for leave.
Tip 2: Use Certifications
FMLA regulations provide that an employer is permitted to require an employee to obtain a medical certification if that employee is seeking intermittent leave for his or her own serious health condition. When an employee requests FML for his or her own serious health condition, the employer should promptly provide to the employee a U.S. Department of Labor approved medical certification form, and inform the employee that he or she has 15 days to return the completed form to the designated human resources official. The employee should also be notified in writing that failure to return the form will result in FML being delayed or denied.
An employee who fails to return an appropriately completed certification form on a timely basis may have his or her leave delayed or denied. In order to take advantage of this regulation, employees must be put on notice concerning how long the employee has to return the certification, and the consequences of failing timely to return the certification. Failures to comply should be treated consistently and promptly.
Tip 3: Require Employee’s to Cure Insufficient or Incomplete Certifications
FMLA regulations define what information must be included in a certification form. Such information includes the name, address, phone, fax, and specialty of the health care provider (“HCP”), when the health condition began, the probable duration, enough medical facts to support leave, and why the employee is unable to perform the essential functions of the job due to the condition for which he or she is seeking FML. HR officials who oversee FML, should closely read any medical certification form in which an employee requests intermittent leave.
If an employee returns an incomplete or insufficient certification, the employee should be required to “cure” the document. HR officials should identify missing or vague information to the employee in writing. The employee should then be required to go back to the HCP to obtain the missing information, and clarify vague information. The employee then has seven days to return the certification with the necessary information. An employee who fails to “cure,” may have his or her FML delayed or denied.
Tip 4: Consider Recertification
Recertification means that an employer asks the employee to return to his or her HCP and recertify that the employee has a need for leave. While there are a number of rules that govern when and how an employer may ask an employee to “recertify” his or her FML, this article addresses two circumstances that often come up in the context of intermittent leave. First, when an employee asks for an extension of FML, an employer has a right to request recertification to justify the extension. Second, an employer may seek recertification when the employer obtains information which casts doubt on the validity of the original certification. The latter scenario may arise when the employee’s pattern of absences are suspicious, such as when they occur most frequently at the beginning or end of the work week. In these situations, employers should request recertification. Asking for recertification puts employees on notice that the employer is aware of the employee’s use of FML, and may result in opportunities to delay or deny FML if the employee fails to provide timely recertification.
Tip 5: Use Return to Work Certifications Where Appropriate
Employers have a right to know whether an employee returning from an FMLA absence is fit to resume the employee’s essential job functions. In order to request a return to work certification, an employer should already have a uniformly applied return to work policy, which the employees are aware of before an employee seeks FMLA leave. In addition, the employer should advise the employee of the return to work requirement at the time the employee seeks FMLA leave. With respect to intermittent leave, an employer may require a return to work certification a maximum of once every 30 days if the employer has reasonable safety concerns related to the reason for leave. That means the employer must have a reasonable belief in significant risk of harm to the employee or others.
Tip 6: Require Employees to Use Vacation Time Simultaneously With FML
Some employers generously allow employees to use FML without using up their paid vacation time. This is certainly permissible. However, if employers are experience FML abuse, then they should consider revising that policy to require employees to use vacation time simultaneously with FML. In many cases, employees who abuse FML are less likely to do so if it also means using up all available paid leave.
These tips provide employers with a quick reference on the areas of the FMLA regulations which provide the employer protection against FMLA abuse. Employers should review these tips and consider where improvements can be made in FML policy and procedure in an effort to reduce abuse.