Best Practices for Preventing FMLA Abuse: Using the FMLA to your Advantage
You are placed on notice of an employee’s need for FMLA leave. What is the first thing you do?
Don’t give leave prematurely • Before designating leave as FMLA, confirm the employee is eligible for the leave. – Note: If employer represents leave as FMLA qualifying and employee acts on representation, employer might need to honor reinstatement requirements, even if employee is not otherwise eligible for leave. • All public employers are “covered” under the FMLA, but not all need to provide FMLA leave (50+ employee/75 mile requirements) – If you fall in this category, review your policy to ensure you are not unnecessarily providing rights to which employees are not entitled.
Who is eligible for leave? 1. Employees must have at least 12 months of employment, 1250 hours in the previous 12 months. 2. Has employee already used FMLA in the relevant period (calendar year, rolling, etc.)? Reminder: Continuous l eave entitlement is 12 work weeks & includes holidays . 3. Does the employee present with a qualifying reason? Rule of Thumb: Leave must usually involve treatment from a health care provider.
Enforce Notice Requirements • Employees are required to give at least 30 days’ notice when the need for leave is foreseeable, or at least as soon as is practicable. – If employees fail to provide appropriate and timely notice, FMLA coverage may be delayed for 30 days from date of notice absent a reasonable excuse. – Of course, employers will need to act depending on the particular facts and circumstances involved in the situation. If an employee could not provide notice, that would need to be taken into consideration.
Enforce Your Procedures 1. Employers may enforce company call-in procedures when an employee takes FMLA leave— even when the leave is not foreseeable . 2. Employees are to comply with the company’s usual and customary notice and procedural requirements for requesting leave unless there are extenuating circumstances. 3. If employees do not follow the company policies/procedures, FMLA coverage for the absence may be delayed or denied. Again, any unusual circumstances would need to be considered.
Require Certification • Requiring certification from the health care providing will ensure that the need for leave is medically necessary. • Employees have 15 days to return to return FMLA paperwork, absent extenuating circumstances • Highlight the area of a medical certification where it indicates that “terms such as ‘lifetime,’ ‘unknown,’ or ‘indeterminate’ may not be sufficient to determine FMLA coverage,” to help ensure that the health care provider sees it. • Attach a job description so that the provider has knowledge of the employee’s job duties. – FMLA leave is available when employee is unable to perform any essential job function due to a serious health condition • At the time certification is requested, advise of the consequences for failure to provide adequate certification, which is leave will be denied.
Review Certification Carefully 1. If you ask for certification, make sure you review it, and do so carefully. 2. Employers are entitled to know why the employee will be absent, when and for how long, and the employee can (and should) be held to provide this information. 3. Make sure the certification includes a minimum duration of the condition, which will dictate how long to wait to before requesting recertification, if needed.
Ensure Certification Is Complete and Sufficient 1. Make sure all the fields on a certification are completed. If they are not, require the employee to return the certification completed. Note: Leave can be denied until the a “complete” and “sufficient” certification form is provided. A certification is insufficient if it is “vague, ambiguous, or non-responsive” 2. An employee has seven calendar days to return an incomplete or insufficient certification.
Second Opinion? 1 . Request a second opinion if a certification’s validity is doubtful 2. Employers may choose the health care provider for the second opinion (but it cannot be a “friend” of the employer (i.e., regularly contracted by the employer) ). 3. Employers are to pay for the second opinion. 4. Leave is provisionally provided pending the second opinion, but you can retract the designation and require paid or unpaid leave depending on your policy if opinion does not entitle establishment to FMLA leave.
Do Not Delay Designation of FMLA Leave Employers can retroactively designate FMLA leave with appropriate notice of leave designation, but only if it doesn’t prejudice the employee. Note: If the employer’s failure to timely designate leave causes the employee to suffer harm, it may constituted interference with the employee’s FMLA rights.
Require Recertification When You Can • Every 30 days, or when the minimum duration of condition expires. • Less than 30 days if: – Employee requests extension of leave – Circumstances have changed • Using more leave than expected • Abusive leave pattern (Mon/Fri) – Is the pattern consistent with condition? – You receive information that casts doubt on stated reason for the absence (e.g., playing softball with a “supposed” knee injury)
Require Fitness-for-Duty Certification • Notify the employee of the requirement at the beginning of the leave, ideally, in the designation notice. • If the health care provider is to make the exam with a focus on the employee’s particular job duties, a list of the essential job functions needs to be included with the designation notice. • If an employee does not provide a fitness-for- duty certification, job restoration may be delayed until one is received. If the employee does not provide such a certification, the employee no longer has a right to reinstatement.
Require Status Reports Employees may be required to report periodically on their status and intent to return to work. Note: There is no clear definition of “periodically,” so caution is suggested. If the leave is long- term, 30-days is good rule of thumb.
Document All Absences All absences, including vacations and vacation requests, should be documented. That way, such requests can be compared with requests for FMLA leave to help detect the possibility of abuse (e.g., employee was denied vacation of leave and then submits FMLA request for same time period).
Talk to Employee if Abuse is Suspected If an employee is suspected of FMLA abuse, he or she should be confronted with what facts and concerns are available. If the employee is “acting,” the employee may be less susceptible to continued abuse Avoid acting solely on hearsay; if there is reason to suspect problems, investigate further to identify a factual basis for your suspicion. Allow the employee to explain before taking action.
Surveillance? While it might be warranted it you have reliable information that FMLA is being abused, proceed cautiously lest you place yourself at risk of a FMLA interference or retaliation claim. Practice Pointer: Consider requesting updated certification instead if you have reliable information abuse is suspected. An employee who fraudulently obtains FMLA leave is not protected by the FMLA’s job restoration or maintenance of health benefits provisions.
Outside Employment Policies • Uniformly-applied policy governing outside or supplemental employment may continue to apply while employee is on FMLA leave. • Thus, if policy prohibits “moonlighting” while on leave (any leave ), this can be enforced while employee is on FMLA leave. • If no policy, but you learn employee is working another job that is inconsistent with need for leave, may be able to show FMLA abuse.
Use a Rolling Calendar Period for calculating FMLA leave This avoids potential abuse of employee’s doubling amount of FMLA leave. – If FMLA is calculated on calendar year basis, employee could go out in October and job could effectively be protected six months. – This provides no incentive for employee to return to work if they get another 12 weeks at the start of the year.
Require Use of All Paid Leave Before FMLA • Nothing in the FMLA prohibits an employer from requiring the use of all accrued, paid leave before leave is designated as unpaid under the FMLA (in effect, it offers a longer period of protected leave). • Often, employees do not want to deplete their leave banks, so there is less incentive to abuse FMLA leave.
Demand Treatment Around Work Schedule • The FMLA allows employers to ask employees to schedule medical treatment (e.g., physical therapy) before or after work (or at the start or end of the day), so that the employee can work as much of the shift as possible.
Re-Assignment to Alternative/Less Disruptive Positions Employers can reassign employees needing intermittent or reduced schedules to an alternative available position (with equivalent pay and benefits) if employee is qualified and it better accommodates leave schedule. Practice Pointer: No reassignment is permitted if it is intended to discourage leave or otherwise work a hardship on the employee (e.g., reassigning day shift employee to graveyard shift). Regular job is protected during intermittent/reduced schedule period.
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