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Riding herd on FMLA abuse in 2010

Oklahoma Employment Law Letter - February 1, 2010

By Charles S. Plumb

Understanding and applying the rules of the Family and Medical Leave Act (FMLA) causes employers and HR professionals untold frustration — frustration that’s heightened by employees who unfairly take advantage of the Act and its complexities. Here are some practical suggestions for enforcing the FMLA and cutting down on FMLA abuse in your workplace.

Training and front-end evaluation
It may sound obvious, but training supervisors on how the FMLA and your leave policies work should be your first step. Frontline supervisors are your eyes and ears, and you depend on them for information about potential FMLA abuses. Taking 30 minutes each year to provide your supervisors with an overview of the Act and your leave procedures is invaluable. At the very least, training sensitizes them to the importance of giving you a heads-up for potential problems.

Do your homework on the front end of any potential FMLA situations. Before assuming an employee is eligible for FMLA leave, take the time to run the eligibility traps. Have you employed him for more than 12 months? Has he worked more than 1,250 hours in the last 12 months? Are there 50 or more employees within 75 miles of his work site? Sometimes employers find themselves granting FMLA leave first and determining the employee’s eligibility later.

Contact during leave and leave analysis
Stay in touch with employees during their FMLA leave. The most troublesome FMLA situations — and those most prone to abuse — are the ones in which the employer loses contact with the employee during the course of her leave. Stay in communication to see how the employee is progressing and whether she is satisfied with the medical treatment she’s receiving. An employee on FMLA leave should be required to furnish you with periodic updates on her status and whether and when she intends to return to work.

The U.S. Department of Labor’s (DOL) approved Notice of Eligibility and Rights includes a place for you to alert employees about their obligation to provide periodic updates while out on leave. Most employees appreciate the contact and interest. It lets them know you’re concerned about their well-being and are hopeful they will be able to return to work. Employees who try to exploit the system understand that periodic communication with HR or supervisors makes it more difficult for them to abuse FMLA leave.

Keep track of the employee’s use of FMLA leave during her absence and remind her from time to time how much leave she has used and how much is remaining. Documenting your communications with the employee can be particularly valuable when wrestling with intermittent leave. Take time to analyze where and when leave and other absences are occurring; you may find revealing patterns. Is there a concentration of absences in particular departments or with certain individuals? Do absences and leave disproportionately occur in conjunction with weekends, holidays, or paydays?

Apply and enforce leave requirements
You may require your workforce to follow the procedures of your general leave policy even when they take FMLA leave. For example, you may enforce a leave policy requiring employees to provide written notice or specific information or to contact a particular person (e.g., HR or a supervisor) when they will miss work, even if the absence is FMLA-covered. There are two caveats. First, you must be able to show that the leave policy’s reporting requirements are consistently and fairly applied to all absences — not just those covered by the FMLA. Second, the notice requirements may not be more demanding than those imposed under the Act.

With foreseeable FMLA absences, the employee must provide 30 days’ notice; for unforeseeable absences, he must notify you of the absence “as soon as practicable.” When you believe an employee has failed to comply with your policy for reporting absences in a timely manner, talk to him, and find out why there was a breakdown. If the employee has a good explanation for not giving timely notice, it may not have been practicable for him to follow the call-in requirement.

The current economic situation has prompted some employees to take a second job. Your FMLA policy may prohibit employees from working a second job or handling nonmedical personal affairs during FMLA leave. Those situations are usually brought to the employer’s attention by coworkers or inconsistencies noticed during an absence. You are entitled to investigate an employee’s absence to determine whether he is misusing FMLA leave for moonlighting, vacation, or other personal reasons, provided you have sufficient information to question the legitimacy of the absence. You can even use surveillance to investigate. However, before proceeding with surveillance, make sure you have a reasonable basis for questioning an absent employee’s activities, and confirm with an employment lawyer that you’re not going to run afoul of state privacy laws.

Get the right medical information
One of the most powerful tools you have to police FMLA leave is the more robust and complete health care provider certification form issued by the DOL as part of the new regulations. Use it! No one can complain about an employer using the DOL’s endorsed form, and you can’t improve on it. Let employees know that you expect them to return a complete and satisfactory medical certification in the time allowed under FMLA guidelines — 15 days after you request the certification.

An employee is entitled to FMLA leave only if she is unable to perform her job functions. The medical certification form includes a section for you to either describe the employee’s essential job functions or to attach a job description. The health care provider certifying the employee’s right to FMLA leave should know the employee’s job responsibilities before determining whether she is incapacitated and entitled to FMLA leave.

If the certification is questionable or unsatisfactory, exercise your right to clear up nagging questions about the medical document’s veracity. If you have a reasonable basis to doubt the source of the certification (e.g., suspicious handwriting, document alteration, and inconsistencies), you are entitled to authenticate the document by contacting the health care provider directly to confirm the accuracy and authenticity of the certification. However, direct contact between the employer and the health care provider can be made only by an HR professional, leave administrator, or a leave manager. The employee’s direct supervisor may not contact the health care provider.

If the certification is unsatisfactory (e.g., incomplete, inconsistent, vague, or illegible), you may require the employee to obtain a clearer or more complete certification. You must be specific about what information is unsatisfactory and how the form can be completed or corrected. The employee has seven calendar days to provide the corrected information. Don’t settle for marginal medical certifications; require employees to complete satisfactory, detailed, and informative certifications as a condition of FMLA leave.

If the employee fails to get the adequate information within seven days, you have the option of obtaining a Health Insurance Portability and Accountability Act-compliant release from the employee allowing you to make direct contact with her health care provider. (Again, the employee’s direct supervisor may not contact the provider.) However, it’s better to leave the responsibility of obtaining a satisfactory medical certification with the employee. From a practical standpoint, second or third medical opinions don’t work. They delay the process and muddy the waters in terms of medical conclusions, and the employer ultimately bears the cost of multiple examinations.

Employees with ongoing medical conditions or absences may be required to obtain updated certifications from their health care provider. If the original certification lists specific dates of incapacity, you can require recertification only after the specified time period has expired. If a medical condition (e.g., diabetes or asthma) lasts for an extended period of time, you can require recertification every six months. If the circumstances of the medical condition have changed from the original certification (e.g., an increase in the frequency or duration of the absences or some reason for questioning the legitimacy of the absences), you may require a new certification. Consistently requiring recertification lets employees know you’re not asleep at the wheel when dealing with FMLA absences.

Intermittent leave
Intermittent FMLA leave is the most complicated and disruptive form of FMLA absences. As a starting point, the revised DOL medical certification form includes a section devoted to determining whether an employee is entitled to intermittent FMLA leave for ongoing treatment of a medical condition. The form contains detailed questions that the health care provider must answer before an employee can take intermittent FMLA leave. Before considering intermittent leave for an employee, make sure there’s an adequate and complete medical certification supporting the need for such absences.

For recurring, nonemergency intermittent absences (e.g., doctors’ appointments, rehabilitation, or ongoing treatment), you may sit down with the employee and require him to schedule the absences in a way that is less disruptive of work and his responsibilities. Doing so is an interactive process in which the employee must participate and cooperate. In addition, you may enforce a uniformly applied policy requiring a minimum amount of time deducted for leave, so long as it’s applied universally for non-FMLA leave and absences as well. Finally, you can temporarily transfer an employee who needs intermittent leave to a position that better accommodates his intermittent absence if his pay and benefits are not affected.

Final word
If you have gathered the facts and conclude that an employee is exploiting FMLA leave or abusing your policies, take appropriate disciplinary action. You must create a work environment that sends a message: Employees entitled to FMLA leave will receive leave and quality treatment, which improves their chances of returning to the workforce as productive individuals. On the other hand, you want workers to know that you’re minding the store, monitoring FMLA leave, and taking appropriate disciplinary action against individuals who try to game the system.