Yesterday’s Advisor offered the first 7 of attorney W. Melvin Haas’s tips for combating FMLA abuse. Today, the rest of his tips, plus an introduction to the book many call “the FMLA Bible.”
IHaas is managing member at the Macon, Georgia office of Constangy, Brooks & Smith, LLC.
8. Require “fitness for duty” certifications for employees returning to
work.
When employees return from leave for their own serious health condition, an employer can require a fitness for duty determination, which is another way to prevent abuse. However, a fitness for duty certification cannot be required for a return from intermittent FMLA leave.
9. Require employees to submit a recertification every 30 days.
However, if the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification, except as provided below.
An employer can require recertifications more frequently than every 30 days if:
- The employee requests an extension of leave;
- The circumstances described by the previous certification have changed significantly (e.g., duration, frequency, or severity of the condition); or
- The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. For example, if an employee is on FMLA leave for four weeks due to the employee’s knee surgery, including recuperation, and the employee plays in company softball league games during the employee’s third week of FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the employer to request a recertification in less than 30 days.
In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition).
10. Require second and third opinions.
Many employees use friends and acquaintances in the medical profession to provide questionable certifications for intermittent leave. Employers who question the validity can challenge it by requiring an objective healthcare provider to look at the illness.
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11. Have a policy prohibiting employees from working second jobs while on leave.
Without a uniform policy against holding a second job while on any type of leave (other than vacation), an employee on FMLA can be protected from disciplinary action for working a second job while on FMLA leave. Avoid the potential for abuse with a policy on point.
12. Use private investigators. If an employee is caught engaging in fraud, courts have been reluctant to hold it against an employer who terminates the employee.
Remember, the key to avoiding abuse is consistent enforcement of leave policies designed to prevent it.
FMLA hassles—they just won’t go away, will they? And, now, of course, there are all the new FMLA responsibilities—like military leave and reinstatement. Shell-shocked?
It’s an almost overwhelming task to keep up with FMLA, let alone get in compliance with the far-reaching changes. 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 recently updated Family and Medical Leave Act Compliance Guide simplifies the frustrating and confusing complexities of the Family and Medical Leave Act (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.
A whirlwind of changes has hit the FMLA—are you ready to comply? Download our Free Report: 12 Ways to Curb FMLA Leave Abuse, and also receive a 30-day free trial to Family and Medical Leave Act Compliance Guide. Download Now.
The Family and 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 your copy of the Family and Medical Leave Act Compliance Guide.
Are there any limits on the use of private investigators? What types of things would they look into? I’d worry about invasion of privacy and retaliation charges, among other things.