HR Management & Compliance

Chronic Illness and FMLA Leave: How to Avoid Abuse

Chronic illness can present unique situations when it comes to managing the associated FMLA leave. Since chronic illnesses are generally defined as those lasting a year or longer, and statistics indicate that about 40 percent of U.S. workers have at least one chronic ailment (and about 20 percent have two or more), this means that employers will likely have to manage FMLA leave time for employees with chronic illnesses at one point or another, and this is likely to bring up FMLA questions involving reduced-schedule or intermittent leave as well.

“Managing employees with consecutive years of intermittent leave is one of the number one questions that comes up. What happens if we have someone who we expect is going to have a long and distinguished career with us [and] they’re going to have this lifelong illness for many years? They’re going to be taking periodic leave or be reasonably accommodated on a longer term—and it may go across years.” Patricia Eyres noted in a recent BLR webinar. How can an employer handle this? What about problems that may occur?

Any time the topic of reduced-schedule or intermittent FMLA leave comes up – whether it is for a chronic illness or not – it almost invariably raises the question of how to avoid abuse. These are ways to avoid abuse for employees who will be using leave each year:

  • Track eligibility from year to year, particularly the 1250 hours worked requirement.
  • Obtain complete medical certifications for all serious health condition leaves (intermittent or not). Insist that the medical certification be complete, and put the burden on employees to obtain any missing information.
  • Even when you have information from the employee’s doctor that satisfies the definition of serious health condition, use the certification form to obtain any additional information not furnished, such as probable duration or anticipated frequency of flare-ups or unpredictable absences. (However, if you have all of the information needed to certify the leave, then you cannot require a specific form; use a form in cases where you did not get all of the relevant information.)
  • “Provide the healthcare provider with enough information that they can give you an adequate certification of whether the employee is incapacitated from performing essential job functions.” Eyres advised. This includes giving the medical provider a job description or list of essential job functions.
  • Establish specific protocols for reporting intermittent leave absences. “If you’ve got an employee who’s taking 480 hours over the course of a 12-month benefit year . . . there’s going to be times during that year that they’re going to have an absence that has nothing to do with their own serious health condition.” Eyres explained. “You want to establish specific protocols for when they should call in, what they should say, and if it is a condition or an absence that is unrelated to their serious health condition, they should disclose that so that it can be properly coded and characterized in your payroll records.” Be sure to monitor or spot check the call-ins for erratic absences using intermittent leave, and discipline employees who fail to comply with procedural call-in requirements.
  • Be sure to train front-line leaders to not bring up protected absences as a performance issue—not in performance evaluations and not even in verbal feedback. That kind of language – especially if there are negative consequences – can be deemed as leave interference. It could also be deemed as retaliation.

For more information on handling FMLA leave for chronic illnesses, order the webinar recording of “Employees with Lifelong Illnesses: Managing Absences and Providing Accommodations.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers’ comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.