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Best Ways to Curb Intermittent FMLA Abuse

    October 9, 2017

    Best Ways to Curb Intermittent FMLA Abuse

    By CCHRA Legislative Chairperson Jennifer Ermilio, Esq. and

    Lisa Scidurlo, Esq., Stevens & Lee, P.C.
     

    Time and time again human resources professionals throw up their hands in frustration when an employee is suspected of abusing intermittent FMLA.  In fact, according to a recent survey by the Society of Human Resources Management, 66% of human resources professionals have reported having issues from chronic abuse of intermittent leave.  In addition, 80% of the same professionals said tracking and administering this type of leave was the most difficult challenge in their positions.

    At times, administering intermittent FMLA leave becomes so burdensome that many employers simply give up.  That approach, however, is a huge mistake as intermittent leave abuse can wreak havoc on an entire organization’s morale and productivity.  Importantly, the FMLA regulations provide a number of tools that employers may utilize to curb FMLA leave abuse.  The following are the top nine recommended tools:

    • Exercise Your Right to Certify and Recertify Conditions – Watch for Variations in Frequency and Duration

    The FMLA permits employers to obtain medical information necessary to determine whether an employee suffers from a serious health condition or other qualifying reason which would allow them to be entitled to FMLA leave in the first place.  In addition, in the case of intermittent leave, a medical provider is required to certify that this type of leave is necessary.  There are also multiple opportunities for recertification. Be aware of variations in frequency and/or duration in the intermittent leave being taken by an employee, i.e., when an employee is taking intermittent time that is inconsistent with that described in the certification. Seeking certification and recertification acts in many cases as a deterrent to abuse.

    • Exercise Your Right to Additional Medical Opinions

    Employers have the ability to question validity of a medical certification and, when doing so, may request that the employee submit to a second or even third opinion from an objective healthcare provider.  The only downside to the employer is that it must absorb this expense.

    • Require the Use of Paid Leave Concurrently with FMLA Leave

    Another important deterrent to intermittent FMLA abuse is the ability of an employer to require an employee to use paid time concurrently for their FMLA absences.  Employees are certainly less likely to abuse intermittent FMLA when they are forced to burn through their vacation or personal time before using unpaid leave.

    • Enforce Your Call In and Notification Procedures

    It is important that employers understand that they have the ability to enforce call out and notification procedures even for an employee who is exercising his or her right to intermittent FMLA leave.  As long as these policies are applied consistently, an employer can require that an employee on intermittent leave follow them.

    • Require Employees to Schedule Medical Appointments Outside of the Work Schedule

    Employers also have the ability to require employees to schedule appointments that qualify for FMLA leave in a way that least disrupts the employer’s operations.  Employers are permitted to ask about the frequency of treatments, available office hours, and whether treatments can be scheduled before or after the work day or on the employee’s day off.

    • Consider a  Temporary Transfer

    An employer may also temporarily transfer an employee to an available alternative position that better accommodates recurring periods of leave if that intermittent leave is foreseeable.  While the employer must continue to provide equivalent pay and benefits, the duties do not necessarily have to be the same.  Sometimes the thought of leaving a particular position also acts as a deterrent defense to abuse.

    • Prohibit Moonlighting

    Employers should have a policy that specifically prohibits moonlighting or working a second job while on any type of leave, including FMLA leave.

    • Provide FMLA Training

    All supervisors should be aware of the basics of the FMLA and should be in tune to problematic employees.  If they are trained to spot potential FMLA abuse, human resources will have a leg up on the issue.  Often supervisors are afraid to ask the questions necessary to identify potential abuse situations simply due to lack of knowledge.

    • Follow Up on Potential and/or Habitual Abusers

    An employer has the ability if it honestly and in good faith believes that the employee is misusing leave to investigate and document.  It is important for employers to exercise this right in circumstances that suggest that an employee is clearly misusing leave, which includes surveillance and/or other investigative tools. 

    The bottom line is that the FMLA does provide some tools for employers to use to curb intermittent employee abuse.  No single tool alone will curtail the abuse, however, if employers take advantage of all of these tools and consistently administer the FMLA policies, there is a better chance that employees will be less likely to abuse intermittent FMLA leave.

     

    Disclaimers:

    This article has been prepared for informational purposes only and does not constitute legal advice. The information presented is not to be construed as an offer to represent you, nor is it intended to create, nor does the receipt of such information constitute, an attorney-client relationship.  Each situation is unique and the generalities mentioned may not apply to your situation.  Therefore, you should not rely on the information contained in this article without first obtaining the advice of a competent employment attorney. 

    The opinions and views expressed in this article are the opinions of the author and do not necessarily reflect the opinions or views of CCHRA or its members.