In order to minimize disruption in the workplace, an employer must detect and deal with employees who abuse FMLA, says Haas, who is a managing member at the Macon, Georgia office of Constangy, Brooks & Smith, LLC.
Managers are somewhat apprehensive when questioning an employee's requested FMLA leave because of the fear of violating the FMLA. Don't be afraid to hold employees accountable for their actions, says Haas.
Fortunately, the FMLA rules and regulations provide employers with rights that help limit potential FMLA abuse. These dozen helpful hints should help you to curtail or eliminate FMLA abuse:
1. Calculate FMLA leave using a “rolling” 12 month period.
Measuring FMLA using this method (looking back 1 year and determining how much FMLA leave an employer has already used) avoids the potential abuse of employees “doubling” FMLA, which can happen if FMLA is measured on a calendar year.
For example, on a calendar year system, an employee could take the last 12 weeks of one year and the first 12 weeks of the next year, giving a total of 24 consecutive weeks of leave. This can’t happen with the rolling back method.
However, the rolling back methods is somewhat more cumbersome to administer for most departments.
2. Require employees use all paid leave prior to taking unpaid FMLA.
Employees are less likely to abuse FMLA if they have to burn up their vacation to do so. Likewise, employers can count time off for on-the-job injuries, which qualify as serious health conditions, toward FMLA, also limiting the number of days available for potential abuse.
3. Require medical certifications to be returned within 15 days.
An employer who requires medical certifications in writing, explaining the penalties for not turning them in, may take action—including delaying the leave—toward employees who fail to follow the rules.
Additionally, obtain clarification of a medical certification, if necessary. The employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies. To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances, may the employee's direct supervisor contact the employee's health care provider.
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4. Require employees to provide 30 days notice for foreseeable FMLA
Requiring advance notice gives you the luxury to plan around the absences, which increases productivity and minimizes abuse.
If thirty (30) days notice is not practicable, then notice must be given within one or two business days of when the leave becomes known to the employee.
5. Demand that employees schedule medical treatments around your operations schedule.
The regulations allow you to ask employees to schedule medical treatment before work or in the late afternoon in order for the employee to work as much of his or her shift as possible. The employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations
6. Establish and enforce reasonable attendance and call-in rules for all
The law allows employers to enforce established 3-day no-call, no show policies even when the employee is on FMLA leave.
Additionally, an employer can require employees to call-in at regular intervals, including every time he or she leaves home. Furthermore, an employer can enforce an attendance rule stating that employees will be terminated for missing 5 days from work without an excuse or a policy requiring employees to call in at least 1 hour before his or her scheduled shift can also be enforced.
Similarly, a requirement that employees to report at regular intervals on their employee status and intent to return to work pursuant to all leave policies can be enforced against employees who fail to adhere to this requirement.
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7. Assign employees taking intermittent leave to alternative positions that cause less disruption, if possible.
If an employee’s continued intermittent absences interfere with operations, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position.
The alternative position must have equivalent pay and benefits, and the employee must be reinstated after the need for leave ends.
Note: An employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee.
In tomorrow’s Advisor, abuse-fighting tips 8 to 12, plus an introduction to the book many call “The FMLA Bible.”
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