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Need to root out FMLA abuse? Requesting recertification a valuable tool

The federal Family and Medical Leave Act (FMLA) often enables employees dealing with serious health conditions to hold down a job while also attending to their medical issues. Used properly, it can be a win-win for both the employee and the employer. But many employers can tell war stories about challenges in administrating FMLA leave: It’s sometimes difficult to get an employee to provide the medical certification the employer is entitled to, it’s often challenging to plan for intermittent leave, employees aren’t always honest in their use of leave, and the list goes on. 

The law is intended to allow employees dealing with their own or a close relative’s serious health condition up to 12 weeks a year in unpaid leave if the employee has worked at least 1,250 hours within the last 12 months and the employer has at least 50 employees within 75 miles of the employee’s worksite.

The law’s regulations spell out the details about employee and employer responsibilities, but “it gets challenging when fraud and abuse is suspected,” according to John S. Gannon, an attorney with Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts. Gannon recently conducted a Business and Legal Resources webinar titled “FMLA Abuse: Identify, Fight, and Prevent Leave Fraud in Your Organization” in which he explained ways employers can protect themselves from abuse.

“The FMLA regulations are clear that an employee who fraudulently uses FMLA is not protected,” Gannon says. “But it’s rare, and really almost unheard of, that an employee will just come out and say, ‘Yep, I did it, I committed FMLA fraud.” That’s why employers need to know how to prevent abuse and deal with it when it occurs.

Intermittent leave challenge
The law allows employees dealing with a serious health condition or bonding with a newborn or newly adopted child to take off a block of time, but it also allows employees with certain chronic conditions such as migraine headaches and back problems to take time off intermittently.

“Intermittent leave, I think, is the most challenging area and the area of FMLA that’s the most susceptible to abuse,” Gannon says. It’s that intermittent leave, which employees may want to take with little or no notice to the employer, that sometimes earns the FMLA the nickname Friday-Monday Leave Act, Gannon says.

In his webinar, Gannon offered 10 steps for curbing FMLA abuse, including requesting recertification, what he calls “probably the most significant (abuse) prevention tool out there.”

“I highly recommend that everyone request a recertification whenever they are legally entitled to do it,” Gannon says, since an employee’s medical condition and need for leave may have changed since the original certification.

Under the law, employers are entitled to certification from a medical provider that leave is necessary. The certification also should indicate how much leave is likely to be needed. The law gives employees 15 days to provide the medical certification, and the employer has a right to a second and even third opinion.

When requesting a recertification, the employee also has 15 days to provide the certification, but the employer has no right to a second or third opinion unless the request for recertification comes in a new leave year.

Triggers for a recertification request
The law allows employers to request recertification every six months if the original certification for intermittent leave extends to more than six months. If the duration of the need for leave in the original certification is less than six months, recertification can be requested at the end of the minimum duration but no more frequently than every 30 days.

Under some circumstances, however, an employer can request recertification sooner, Gannon says, such as when an employee requests more leave than was previously authorized, there’s a significant change in circumstances, when an absence occurs after the authorization expires, or when the employer receives information that casts doubt on the validity of the need for leave.

Gannon points out that the U.S. Department of Labor has said that a significant change in circumstances may be triggered if there’s a pattern of using FMLA leave around scheduled days off, such as Mondays and Fridays. Also, an employer is permitted to give the healthcare provider supplying the certification with a record of the employee’s absences and then ask whether those absences are consistent with the employee’s condition.

But he cautions employers to check with counsel before requesting recertification or contacting the healthcare provider. Care must be taken to help ward off employee claims that the employer is interfering with the employee’s rights under the law.