Monday, December 14, 2015

Five Steps to Avoid Intermittent FMLA Abuse

Employers all agree that intermittent FMLA leave is one of the most frustrating policies to effectively monitor. In fact, many employers view intermittent FMLA as a virtual free pass for employees to take off at their whim. While it is true that intermittent FMLA creates a great deal of room for employee abuse, employees who place a premium on work and life balance, including the ability to remain active contributors at work while addressing their own or their family member’s medical needs, increasingly turn to the FMLA.  But, what about the employees who use their intermittent FMLA leave because they just don’t want to regularly report to work? Here are five ways to prevent FMLA abuse.

1. Require a complete and timely submission of a physician’s certification of the employee’s own serious medical condition of that of the employee’s family member.

This may seem like a no-brainer, but sometimes going back to basics will help prevent abuse.  Many employers give the employee certification form only a cursory review.  Tip number one is to insist that the physician’s certification is completed fully and signed.  If any of the questions on the certification form are blank or incomplete, turn it back to the employee with the direction that their doctor answer all of the questions.  

2. Follow up with the physician if any of the information on the certification is vague or contradictory.

Here is a real life example of the unusual situations that can arise with certification forms. We had a client whose male employee requested intermittent FMLA leave for his own anxiety and depression conditions. When he turned in the FMLA certification form, the employer noticed that the physician that signed it was a gynecologist! When the employer inquired of the doctor, not surprisingly, it learned that the doctor was treating the employee’s wife and had neither examined or treated the employee. A less extreme example also might be when the physician’s statements seem to conflict on the form. For example, if the physician states that the employee may need to be absent two to three times in a month, but also states that the employee may have three or four flare-ups a month, requiring the employee to be off of work for two days each time, the FMLA regulations allow the employer to clarify that information with the employee’s doctor. Remember though, the employee’s direct supervisor cannot do that follow up; it must be an HR representative or another manager or official of the employer who contacts the physician and only after obtaining authorization from the employee to do so.

3. The employer can require a second opinion.

The FMLA regulations also allow the employer to require the employee to undergo an evaluation by a physician selected and paid for by the employer if the employer questions the validity of the certification. Courts have yet to squarely address the issue of whether the employer has to prove good faith in questioning  the validity of the certification, but a second opinion can be well worth the cost of the exam if any suspicion exists that the information on the certification is not accurate. If the employer’s physician (who, by the way, cannot be a doctor regularly employed by the employer) contradicts the physician who completed the certification, the employee has the right to a tie-breaking exam by a third doctor. It is also important to note that the employer’s right to a second opinion exists only with the initial submission of the physician’s certification.

4. Require periodic recertification.

Requiring recertification from the employee can be especially helpful if the employee’s absences do not conform with that described in the original certification. For instance, the employee who reports to have irritable bowel syndrome with expected absences of two days a month but is absent every Friday or Monday should be required to submit a recertification sooner rather than later. A new certification will either clarify or contradict the absences, giving the employer to opportunity to inquire further of the doctor.  Recertification cannot be required more frequently than monthly and employers should be sensitive to treating all similar FMLA employees in a like fashion. 

5. Investigate Possible Abuse.

If an employer really believes that an employee is abusing FMLA leave, investigate the situation. Employers, or their insurers, do this all the time when worker’s compensation fraud is suspected. Those same investigation methods can be employed when FMLA abuse is suspected.  Employee surveillance, for instance, periodically reveals, for example,  that the employee who claims to be too sick or injured to come to work, is spending the day up on a ladder at their house cleaning out their gutters, or as happened in a case we had,  on a three day deer hunting trip with the employee’s friends. Sure, this can be costly to the employer, but it can also serve as a strong deterrent to all employees who might consider using intermittent FMLA as a way to take off a little more time from work.