As most employers with 50 or more employees know, the Family and Medical Leave Act (FMLA) allows employees to take up to twelve (12) weeks of unpaid leave for their own or a family member’s serious health condition. An employee’s ability to take small increments of FMLA leave, on a sporadic basis, generates administrative headaches and raises concerns about employee abuse. Under the FMLA, an employer is not powerless to stop abuse of intermittent FMLA leave. Here are some strategies employers may use to get a handle on this troubling problem:
1. Question the Original Certification: When an employee submits certification for a chronic condition that will flare up and require intermittent leave (asthma or migraines for example) consider two options:
– First, if the certification is vague or ambiguous, ask the employee to provide complete and sufficient information within seven (7) days. If the employee fails to do so, the leave may be denied or delayed;
– Second, contact the health care provider to ensure that they actually prepared the certification to clarify handwriting or response.
2. Ask for a Second Opinion: If you have reason to doubt the validity of the initial certification, an employer may ask for a second opinion. The physician may be of the employer’s choosing but can not be one employed by the employer on a regular basis. It is the employer’s responsibility to pay for this second opinion. If there is a discrepancy, an employer may require an employee to seek a third opinion, but again, it is the employer that must pay for this third opinion.
3. Ensure that All Absences Related to the Condition are Properly Counted: An employer must be certain that all absences related to the condition are counted against the employee’s FMLA entitlement, while at the same time, ensuring that they are NOT counted against the employee under a no-fault attendance policy.
4. Require Employees to Follow Your Paid Leave Policy: You may require that employees use up paid leave time for their intermittent FMLA absences. In fact, all employers should include such a requirement in their FMLA policies and enforce the practice of using paid time off during FMLA leave. This will prevent employees from taking their paid leave after their FMLA leave expires, thereby extending their leaves of absence beyond the FMLA entitlement. If an employee knows that he or she will be burning accrued vacation time, they may think twice about abusing the policy. You may also require employees to call a certain person or particular phone number to notify your company of an FMLA absence. An employer may require a doctor’s note for paid leave time. If the employee fails to provide the note, FMLA leave can not be denied but may be unpaid.
5. Request Recertification: The FMLA offers a number of opportunities to seek recertification of the need for FMLA leave. For example, an employer can request recertification any time an employee seeks to extend an existing FMLA leave. Additionally, an employer can seek recertification every thirty (30) days in connection with absences related to long term conditions or conditions that may require sporadic absences.
6. Follow Up on Changed or Suspicious Circumstances: An employer may seek recertification more frequently than 30 days if the circumstances described by the existing certification have changed or if the employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification. This could include a different frequency or duration of absences, or increased severity or complications from the illness. An employer is permitted to provide information to the healthcare provider about an employee’s absence pattern and ask if the absences are consistent with the health condition.
7. Control the Ways That Employees Schedule Planned Treatments: Employees may take intermittent leave for treatment, therapy, and doctor visits for serious health conditions. Under the FMLA, employees must schedule those absences for planned medical treatment in a way that least disrupts an employer’s business operations. An employer should communicate with an employee about the frequency of the treatment, the hours of the health care provider, and ways the employee may be able to alter their schedule to minimize business disruptions.
8. Consider Temporary Transfers: An employer may transfer an employee, during the period of intermittent leave, to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave. Although this alternative position must have equivalent pay and benefits it does not have to provide equivalent duties. If an employee asks to use leave in order to work a reduced work schedule, the employee may be transferred to a part time role at the same hourly rate as the employee’s original position as long as the benefits remain the same.
While this is not a comprehensive list of the tools available to an employer to combat abuse of intermittent FMLA leave, and consultation with a lawyer that focus his or her practice in this area is always recommended before taking action which could lead to liability, at least it gives an employer hope and a sense that they are not powerless to stop abuse of FMLA leave.
With over 30 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us through our website.