Employers actually do have rights to protect themselves from abuse under the Family and Medical Leave Act (FMLA). Here’s a list.
Since December, the Family and Medical Leave Act (FMLA) has been under review, with employers and labor leaders differing on just what changes should be made. They have generally agreed on one point, however:
There has been abuse of the law by “hard case” employees who take advantage of FMLA’s provisions, and particularly its intermittent leave allowance, to cover absences or tardinesses that have no good reason.
Recently, several experts have weighed in on how to structure a company’s FMLA policy position to make such abuse more difficult. One is attorney W. Melvin Haas III, a managing member of the national employment law firm of Constangy, Brooks & Smith, LLC.
“To minimize disruption of the workplace,” says Haas, “an employer must deal with employees who abuse FMLA. Managers are apprehensive when questioning requested FMLA leave because of the fear of violating the FMLA. [But] the rules and regulations provide employers with rights that help limit potential FMLA abuse. Don’t be afraid to hold employees accountable for their actions!”
Haas has formulated a list of measures to counter FMLA abuse, some of which were recently posted on BLR’s subscription website, HR.BLR.com. His recommendations include the following:
For more information on BLR’s “everything you need for HR” website, HR.BLR.com, or to arrange a totally free trial and get a free special report just for trying it, click here.
–Require second and third opinions before granting FMLA leave. They’re at your expense, but this could deter workers who have a “friendly” doctor willing to certify leave eligibility when it’s not really needed.
–Calculate FMLA Leave on a “rolling” 12-month basis. Workers are entitled to up to 12 weeks of FMLA leave a year, but the law doesn’t say it needs to be a calendar year. You can calculate from any date, avoiding an automatic resetting of the clock to another 12 weeks just because the calendar has changed.
–Require use of all paid leave before FMLA is granted. “Employees are less likely to take leave if they have to burn up their vacation,” Haas says.
–Use the clock in your favor. Enforce a 30-day notice period for foreseeable leave. Require medical certification for leave to be returned within 15 days. And demand recertification of the reason for the leave every 30 days. (This latter step is at the employee’s expense and is itself a deterrent against overextending necessary leave.)
–Prohibit workers from holding second jobs while on leave. Employees can legally moonlight under the FMLA, providing them the income to stay off your job, but you are entitled to formulate a policy against this practice and to terminate them if they violate it.
–Structure FMLA leave around your needs, as well as the worker’s. You have the right to demand that medical treatments be done after hours, if they’re available at those times. And you are free to transfer an employee who takes intermittent leave to a position that’s less disrupted by frequent absences, as long as the pay and benefits are equivalent.
–Require a “Fitness- for-Duty” certificate from the employee’s healthcare provider before allowing return to work, which discourages leave that’s not really medically necessary. You can’t require this for intermittent leave, however, Haas points out.
Communication is key
Robert J. Gilson, who specializes in consulting on HR policy at federal agencies, has also written on leave abuse, on the website, FedSmith.com. He adds to the Haas list by concentrating on communication surrounding the taking of leave.
Communicate worker rights and responsibilities under the FMLA with BLR’s PowerPoint program, FMLA: What You Need to Know. Read more.
Gilson advises mandating that any worker calling in for sick leave must talk personally to his or her supervisor, and not just leave a message. If the supervisor is not there, the worker needs to leave a number for the supervisor to call back. And he emphasizes, as does Hass, that whatever policy requirements you make on leave be clearly communicated to workers, calling it essential to build “effective internal public relations tools” that get the information out.
We’ll be discussing just such a tool in the next Daily Advisor.
FMLA: Do Your Employees Think …
…that FMLA covers every medical issue down to a headache or a hangnail? That they can come and go as they like? That return to the job is guaranteed? With so much news about changes in the law out there, you need a tool to clarify their knowledge about the law as it currently exists and probably will for a long time to come. that’s BLR’s PowerPoint and Booklet program, FMLA: What You Need to Know. The complete program is just $99. Read More.
The act specifies that an eligible individual can take up to 12 weeks. In the case of pregnancy, is there any specifics tied to taking longer than a six week period for a healthy birth and a healthy baby? Can the new mother just decide to stay home because the FMLA states that they are eligible for 12 weeks?