In yesterday’s Advisor, attorney Drew Alexis offered suggestions for curbing FMLA abuse; today, he summarizes his eight ways to stop abuse, plus we introduce 10-Minute HR Trainer
Alexis, who offered his intermittent leave tips during BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas, is with the Kinaga Law Firm in Los Angeles.
1. Insist on Complete Certs
Make sure the medical certification is fully completed, urges Alexis. As the employer, you are entitled to a complete and sufficient certification document. If the certification is not complete, send it back to the empl oyee.
HR.BLR.com notes: FMLA’s regulations require that an employer advise an employee whenever the employer finds a certification incomplete or insufficient, and the employer must state in writing what additional information is necessary to make the certification complete and sufficient.
If the deficiencies specified by the employer are not fixed in the resubmitted certification, the employer may deny the FMLA leave. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the healthcare provider, and does not otherwise clarify the certification, the employer may deny the FMLA leave if the certification is unclear.
2. Question by Authentication
Authenticate questionable certs by communicating with the medical provider’s office to ask only, Did this document originate from your office? No permission is necessary to make this inquiry.
3. Make Employees Clarify
Don’t accept vague responses! says Alexis. Have the employee clarify or seek permission to clarify.
4. Seek Second and Third Medical Opinions
If you doubt the validity of the certification, exercise the second and third medical opinion process to challenge the certification, says Alexis.
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5. Do Salary Deductions
Do deduct from exempt employees’ salaries. HR.BLR note: Under the FMLA, an employer may deduct hourly amounts from an employee’s salary when providing FMLA leave without affecting the employee’s exempt status under the FLSA. Thus, an employer may “dock” the pay of otherwise salaried employees for family and medical leave-related absences of less than one full day without affecting their exempt status.
6. Recertify Often
Conduct recertifications when you are allowed to and when they are appropriate
7 Recertify Effectively
It’s important to show medical providers the attendance patterns, says Alexis. Some experts suggest actually “X”ing out the dates on calendar pages, so the practitioner can see, for example, the obvious pattern of back pain or migraines that only appear on Mondays and Fridays.
8. Require Employees to Schedule Leave for Your Convenience
Require employees to work with you in scheduling treatments and absences. It is their obligation to attempt to schedule treatment at times and places that cause minimal disruption to your work.
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I never understand why some HR colleagues are so hesitant to require certification. I suppose it’s fear of some type of retaliation or denial claim, but certification is so essential to preempting abuse.