For eligible employees with a serious medical condition or with a family member with such, an FMLA leave can ease their minds about their job while they take time to address medical issues. On the other hand, employers know that a FMLA leave is one of the easiest ways for their employees to avoid work over a long period of time. It remains one of the most common sources of employer frustration because it is difficult to refute an employee’s need to be off of work when his or her doctor is saying otherwise. Strict enforcement of FMLA policies and procedures can help curb abuse. Here are eight procedures that every employer should implement, whether in response to a request for continuous or intermittent FMLA leave:
1. Require a timely physician certification. The FMLA and its regulations do not require that a physician certify the need for a leave, but employers should in every instance, even the obvious ones, to ensure a uniform practice in the workplace.
2. Any vagueness or questions about the employee’s leave requirements should be clarified with a call to the employee’s doctor by a member of the HR staff or a member of management who is not the employee’s direct supervisor. For instance, if the submitted doctor’s certification reflects in one part that the employee needs to be off for 12 weeks to care for a parent with a broken arm and in another statement on the form says that the employee will be needed to drive the parent to doctor’s visits and therapy, it is appropriate to clarify whether the employee needs to be off of work continuously for 12 weeks or only intermittently to perform the identified tasks of driving the parent to the doctor and for therapy.
3. Employers who are not satisfied with a doctor’s certification or believe that it may not be valid should require a medical evaluation by an independent doctor at the employer’s expense. Employers can only take advantage of this option at the point of the employee’s initial FMLA certification. They are prohibited by DOL regulations to require a second opinion at the point of subsequent recertifications. A second opinion allows the employer to ensure that the length of time of the leave, the reason for the leave and the certification itself are all accurate and valid.
4. Employers should require their employees on intermittent FMLA leave to call in their absence on every occasion that they are out of work for an FMLA covered reason in the same manner that they would for non-FMLA absences. It holds employees accountable.
5. Requiring regular (but no more than monthly) FMLA physician recertifications helps to ensure that the employee’s FMLA eligible condition has not changed. This holds true for both continuous and intermittent FMLA but especially the latter. Time and treatment often can lessen the effect of the medical condition thereby reducing the amount of leave required. Sometimes it turns out that the employee is no longer even in need of FMLA leave but has continued to enjoy the “protection” that the initial doctor certification afforded.
6. Employers should always require exhaustion of all of the employee’s paid benefit time while on FMLA, exhausting vacation leave first. Especially in cases of intermittent leave, employees are less likely to abuse FMLA if it cuts into their vacation time.
7. If FMLA abuse is suspected, employers should investigate it (but not engage in possible FMLA interference). Here are some tips to do that:
- Call the employee – at home if possible. The reason for the call cannot be to ask work related questions, as that could be FMLA interference, but you can call to check on your employee’s well being.
- Check social media. You would be surprised how many times employees will post pictures of themselves at parties, vacations and the like, while they are claiming to be unable to go to work.
- If you really think that an employee is abusing FMLA, conduct surveillance on the employee. Sure, it can be expensive, but it can be powerful evidence of an employee faking a medical condition. It’s pretty routine in the world of worker’s compensation and it sends a message to all employees that abuse won’t be tolerated.
8. Employers who believe that an employee is engaging in FMLA abuse should conduct a thorough investigation before taking adverse action, including denial of future FMLA. This investigation should always include giving the employee the opportunity to respond to allegations of FMLA abuse. Proper investigation and documentation will reduce the risk of liability to the employer if an adverse action against the employee occurs.
