FMLA Malingerers? Recertify, Recertify, Recertify

What Can You Do About FMLA Malingerers?

There are always malingerers, Garofalo says, employees who work the system. And just brace yourself, she says, because they are going to occupy a disproportionate amount of your time. The best you can do to control them is to watch carefully, track their hours, and take advantage of all your opportunities for recertification.

Garofalo, managing partner of the Hartford office of national employment law firm Jackson Lewis, delivered her remarks at a recent seminar sponsored by workforce management software supplier Kronos.

Recertifications

First of all, says Garofalo, recertifications may be requested once every 6 months, even for ongoing or lifetime serious health conditions.

Unless you can show “changed circumstances” or have reason to doubt the continuing validity of the leave, you may not require recertification until the initial period of leave is completed.

For example, if the original certification said that one “flare-up” a week could be expected, and your employee is experiencing four flare-ups a week, you can ask for a recertification.

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Employees with Fluctuating Work Schedules

To figure out what an FMLA “week” and an FMLA “hour” are for employees with fluctuating workweeks, employers are now able to calculate averages based on the previous 12 months of work rather than the last 12 weeks as under the old regulation.

Required Overtime

Employers may count normally required overtime against FMLA leave.
For example, if an employee is normally required to work 48 hours in a particular week, but can only work 40 hours due to a serious health condition, the employee would use 8 hours of FMLA leave, or one-sixth of a workweek (8 divided by 48).

Note that voluntary overtime hours not worked may not be counted against FMLA, says Garofalo.

Light Duty

Light duty does not count toward FMLA.

Attendance Bonuses

“Well done, Susie, you just missed 90 days of work. Here’s your perfect attendance award.” Under the old law, perfect attendance awards had to be given even to people who had missed months of work on FMLA leave. Under the new law, that loophole is closed.

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Increased Damages

Garofalo notes that the new law increases damages for interfering with FMLA rights. Possible damages now include “any other relief tailored to the harm suffered.” “We don’t know what that means,” Garofalo says.

But one thing it doesn’t mean is relax about FMLA. How about your organization—All clear on your new FMLA responsibilities? Or still a little shell-shocked?

Frankly, it’s a daunting task to get in compliance with these far-reaching changes to the FMLA. You’re going to need a helping hand. Good news! BLR’s editors have gone into overdrive to get your comprehensive compliance guide ready.

BLR’s hot-off-the-press Family & Medical Leave Act Compliance Guide simplifies the frustrating and confusing complexities of the FMLA, so you know exactly how to comply in every situation.

It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.

The Family & Medical Leave Act Compliance Guide includes:

• Leave law overview
• All the new forms and advice on how to use them
• Practical guidance on implementing all aspects of the new rules
• Analysis of federal and state laws, what they require, and how they interact
• Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
• Recordkeeping and reporting requirements
• Reasonable accommodation
• Sample policies and forms
Plus
• A quarterly newsletter and updates, to make sure you stay in compliance as any changes come about.

Get more information or order now.

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