7 practical steps to prevent FMLA, CFRA leave abuse

Administering FMLA/CFRA leave can be frustrating, especially when abuse of the system is suspected. What can employers do to curb FMLA/CFRA leave abuse? Here are 7 practical steps employers can take.

1. Have a written policy that clearly states the employee’s responsibility to request FMLA/CFRA leave and their obligations while on leave. The policy should also include the employer’s obligations. “Uniformly enforce the policy. In other words, don’t cherry-pick. Don’t apply the policy in a discriminatory fashion because that is just a recipe for disaster and some type of discrimination litigation.” Allen Kato advised in a recent CER webinar.
2. Communicate with the employee in writing and confirm any verbal communications with employee in writing.
3. Keep careful track of leave time used and the medical certifications. Get recertifications when applicable. “Employers should insist that employees provide new certification or recertification if the prior certification has expired.” Kato advised.
4. If the certification received from the employee is incomplete, the best practice is to preliminarily approve the leave as FMLA/CFRA leave pending receipt of the valid certification. However, if the employee does not come back with a valid certification, then the time off is not FMLA-eligible and can be processed under the normal attendance policy.
5. Use a reputable specialist – not a general practitioner or a health clinic doctor – for medical examinations of the employee that are required by the employer.
6. Use a professional investigator for investigations of suspected leave abuse. Don’t simply rely on coworker rumors, even if that is the original source of the suspicion. “In terms of establishing that the individual (the employee) is in fact abusing leave, I suggest that you use a professional to conduct some at least minimal investigation to be able to establish enough evidence that would hold up in a trial (if it gets to litigation) [showing] that this employee is in fact abusing the leave.” Kato confirmed.
7. Consult counsel before deciding to terminate employee for leave abuse; this is a high risk termination because the leave is protected by law.

The above information is excerpted from the webinar “FMLA/CFRA Certifications: How to Properly Designate Absences and Stop Leave Abuse.” To register for a future webinar, visit CER webinars.

Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.