HR Management & Compliance

Tips for Curbing FMLA Abuse

Combating FMLA abuse can be frustrating, but there are some straightforward actions employers can take to limit abuse before it happens. It all starts with proper administration of FMLA leave, including the use of medical certifications and recertifications as allowed within the FMLA regulations. These tools not only provide clarity for FMLA leave eligibility, but they also can curtail abuse. Additionally, they serve as a source of documentation to help protect your organization against claims of retaliation or FMLA leave interference.

Tips for Curbing FMLA Abuse: Use Medical Certifications and Recertifications

Proper use of medical certifications is one of the clearest ways to curb FMLA abuse. By requiring that a medical certification be completed by a healthcare provider, the employer will be able to evaluate not only whether the employee is eligible for FMLA leave, but also whether the leave they take is consistent with what is medically necessary. Get the medical certification forms completed fully and consistently for all employees taking FMLA leave.

“Do not accept incomplete, unclear, medical certifications. Make sure you have all of the information that you need to determine whether it’s a proper condition.” Michael E. Barnsback advised in a recent BLR webinar. Employers also have the right to confirm that the medical certification is authentic if there is any doubt. The medical provider can be asked to confirm that the form you received is the same as what they have on file.

Separately, if there is reason to doubt the medical opinion, the employer also has the option to seek a second opinion (and a third if the two do not match).

Recertification can be sought as well, up to once every 6 months.

“Don’t be afraid to seek your recertification.” Barnsback advised. This is especially true if you learn information raising questions about the original stated reason for leave. But recertification can be done every 6 months otherwise. Additionally, a whole new certification (regardless of whether you’ve sought recertification recently) can be required for each new 12-month period that the employee seeks/uses FMLA leave. This is new certification and not subject to restriction placed on recertifications.

Tips for Curbing FMLA Abuse: Keep Good Records

Keeping good records is one of the key ways to ensure employees get their full FMLA allowance but cannot abuse it. The records should include the specific reasons for leave and the amount of leave taken and how much remains during the leave year.

Employers should also remember to use their records to re-evaluate employee eligibility for FMLA leave for each new qualifying reason for leave and at the beginning of each new leave year. The employee must continue to meet the requirements set out by the FMLA.

Tips for Curbing FMLA Abuse: Special Considerations for Intermittent Leave

Intermittent leave is often thought to cause the most headaches, since it can be unpredictable and thus more disruptive. Employers can manage intermittent leave by:

  • Requiring the employee to work with you to schedule foreseeable leave for medical issues
  • Ensuring the employee provides enough information to distinguish whether they will need planned or unplanned leave—they must request planned leave in advance
  • Requiring employees to follow regular call-in policies
  • Being consistent in requiring employees to take FMLA leave only for the condition that has been certified
  • Weighing alternatives to intermittent leave when allowed, such as a temporary transfer or a modified schedule
  • Tracking patterns of intermittent leave use and following up with the medical provider if it seems inconsistent with the certification
  • Exploring whether the employee can still perform the essential job functions with the medical condition

When going through this checklist, however, remember to be mindful of ADA requirements, which often come into play when a “serious health condition” for FMLA purposes could also qualify as a disability for ADA purposes. Employer obligations will shift in these cases.

For more information on curbing FMLA abuse, order the webinar recording of “FMLA Abuse Stops Now: Tips to Identify, Correct, and Prevent.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Attorney Michael E. Barnsback is an officer in the Alexandria, Virginia, office of LeClairRyan. He represents employers and employees in all aspects of federal and state employment law litigation from administrative hearings before the Equal Employment Opportunity Commission and local human rights commissions to formal trials in federal court.

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