Deterring Intermittent FMLA Leave Abuse

by Susan M. Webman and Burton F. Fishman of Fortney & Scott, LLC

The new Family and Medical Leave Act (FMLA) regulations, while not a panacea for the long-standing problem of employees using FMLA rights as an excuse to take leave on an intermittent and, at times, seemingly irrational basis, do offer some help in curbing this persistent problem. By identifying and effectively using the regulations’ various processes and mechanisms, we have developed a meaningful way to restrain the previously unrestrained leave abuser.

A stated goal of the new FMLA rules is to open the door to better communication between employers and employees. The new processes do that, but a side benefit of the many forms and procedures the U.S. Department of Labor (DOL) has instituted is that there are better methods for an employer to monitor and, consequently, limit abusive use of FMLA leave. The downside is that the burden for instituting these procedures will fall directly on HR and management personnel.

Mastering HR: FMLA

Scheduling FMLA leave
A first step to gaining a measure of control is to ensure that your employee knows she must make reasonable efforts to schedule any intermittent absences (e.g., for nonemergency appointments) so that they don’t disrupt work. But unlike in the past, an employer can require its employee to take a minimum period of time from the FMLA allotment in order to go to the appointment. Therefore, if you require a “one-hour minimum” to take any other kind of leave, you can require a minimum of one hour to be taken from the FMLA allotment. Similarly, employers can curb disruptive absences by not allowing nonemergency leaves during the first or last hour of the day — or, at least, no leaves of less than an hour at those times. If a one- hour minimum is required to take any other leave, you can require a minimum of one hour to be taken from the FMLA allotment, too.

Another tool provided by the new FMLA regulations is that the employee must comply with the employer’s “usual and customary” leave policies, except in emergencies. An employer’s policy can mandate that the employee supply specific information, provide notice in writing, and contact a specific person by a certain hour on the day of the leave. The only restriction is that the policy can’t require less than the regulations’ 30-day advance notice for foreseeable leave, when possible, or impose unreasonable time frames to define “as soon as practicable” for unforeseeable leave and qualifying exigency (military FMLA) leave. If the employee fails to follow the employer’s policy, not only could she suffer the consequences of an unexcused absence, but it also could result in a delay or denial of the desired FMLA leave.

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Medical certification
The new medical certification procedures also will assist in curbing leave abuse because employers can get a lot more useful information than before. For example, you can expect to know:

• the health care provider’s contact information and specialty to ensure the doctor has the expertise to diagnose the patient’s ailment;
• the nature of the patient’s condition; and
• the date the patient’s condition commenced and the probable duration of leave — whether for the employee as a patient or as a caregiver.

Employers also can get a description of the medical facts, including symptoms, diagnosis, medications, referrals, and a regimen of continued treatment, that underlie any conclusion that the employee can’t perform essential job functions or that a family member needs her care. Further, if intermittent or reduced leave is requested, you can learn why it’s needed, how often it’s needed, and the expected duration. Failure to submit this information could result in a denial of FMLA leave.

Employer’s right to have the health care provider or doctor focus on the employee’s essential job functions so that he can offer advice about which specific job functions the employee can’t do plays a continuing role in controlling leave abuse. It’s important that you provide the employee with a list of the job functions with the designation notice. If you do, you can demand a fitness-for-duty certification focusing on the job functions as a condition to returning to work. Moreover, if the employee takes intermittent leave, you can demand the certification every 30 days when reasonable safety concerns exist.

FMLA Complete Compliance

Communicating with health care providers
The new FMLA regulations also open the door to your management and HR team getting information directly from the health care provider. Now in addition to an employer’s own health care provider, your HR professionals, leave administrators, and management officials — but not the employee’s direct supervisor — can contact the health care provider to authenticate or clarify a certification. You can and should contact the doctor to get the information you must have to understand the employee’s need for leave. If the information in the certification isn’t sufficient, you can require the employee to ask her doctor to provide the information or, at the very least, require her to give a medical release for you to follow up — or else lose the ability to take FMLA leave.

If in your final review of the initial certification you aren’t satisfied with or clear about the course of treatment or the diagnosis provided, you can require the employee to obtain a second and, if conflicting, third opinion. However, that is time-consuming and expensive since the employer bears the cost, including reasonable travel expenses.

Recertification
A potentially better solution when your employee takes leave and a chronic or long-term illness or pregnancy is implicated is to require a recertification every 30 days. In fact, an employer may make this request more frequently if the employee asks for an extension of leave, circumstances have changed (e.g., the absences aren’t consistent with the prognosis), or management doubts the legitimacy of the employee’s medical status (e.g., Monday or Friday absences).

In any event, a recertification can be requested in all cases every six months for chronic or serious illnesses. There can be no second or third opinions on a recertification. However, because the costs of the recertification are borne by the employee (unless the situation is covered by the Americans with Disabilities Act) and the doctor is the one being bothered to complete the form, using the recertification process may discourage continued abuse.

State-by-state comparison of 50 employment laws in all 50 states, including family and medical leave laws

Bottom line
Imposing and applying these strategies — and making it known that you’re willing to take the time to ensure that leave isn’t abused — may likely lead to far less abuse than you may now be facing.