FMLA abuse is a frustration for many employers. How can an employer continue to provide employees their protected leave while reducing the chances that it will be used improperly?
One way that employers can reduce FMLA abuse is training. By properly training both supervisors and coworkers about how FMLA works, the employer increases the number of people who understand FMLA leave and are aware of what is and is not allowed. In a recent BLR webinar, Stacie Caraway gave us some guidance on this topic. She calls this giving supervisors and coworkers an “informed voice” regarding possible FMLA abuse and fraud.
Using Training to Curb FMLA Abuse
Training supervisors and coworkers can be especially relevant for situations in which the FMLA administrator is not on the same site as all employees, but can be used by everyone, not just in these cases.
There is an appropriate role for supervisors and even coworkers to help curtail FMLA abuse, and nothing in the FMLA prohibits supervisors or even coworkers from reporting what they believe to be FMLA abuse or fraud. They just need to be properly trained on how to do this so as to avoid individual and/or corporate liability for FMLA retaliation or interference.
Before getting started, be sure to not use training only for individuals who are watching over those on leave. In other words, don’t recruit the equivalent of “spies” to watch specific employees. The training should be universal.. Explain it is in everyone’s best interest to understand it well and use it fairly. This helps those who need to take leave themselves and wish to do so lawfully.
How Supervisors can Curb FMLA Abuse
When it comes to specific employees out on leave, you can provide supervisors with information about approved FMLA leaves:
- Who the leave has been approved for (the employee vs. a family member; if it is for a family member, which one?)
- For what period
- Whether it is intermittent or continuous
- Whether it is for planned and/or unplanned events
- A general description of the illness/injury
Providing this limited information lets supervisors determine whether the employee is taking leave that is in compliance with what has been approved. Remember, however, that there is no need to tell people specific diagnoses, which could violate employee privacy. Be general whenever possible so that you do not violate HIPAA.
When involving supervisors, training is also helpful to ensure that supervisors are not interfering with an employee’s right to take FMLA leave. Remind supervisors that FMLA is one of the few federal laws which provides for individual liability in the case of interference or retaliation. Asking for too much information or acting in ways that are accusatory could be construed as interfering with an employee’s right to take uninterrupted FMLA leave. Supervisors need to understand the limits.
“In your training, designate who you want the supervisors to report [to] . . . you want that information to flow directly to the person that’s administering your FMLA leave.” Caraway told us. Be sure they understand that there is not any protection or “whistleblower” equivalent for trying too hard to uncover FMLA abuse or for acting against an employee they suspect may be abusing their FMLA leave. Supervisors who decide to be editorial and give superfluous commentary that is derogatory or inflammatory toward the person taking leave can be held individually liable by the DOL or a court and be responsible for damages.
“Train supervisors and coworkers (if you’re going to do widespread FMLA training) to say just the facts.” Caraway advised. Leave it to the FMLA administrator whether they want to look into the matter further. Training supervisors and employees will help uncover FMLA abuse, but everyone needs to act within the limits of the regulations.
For more information on using training to curb FMLA abuse, order the webinar recording of “FMLA Certifications: Tips and Tactics to Successfully Manage Family and Medical Leave.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Stacie L. Caraway is a member in the law firm of Miller & Martin PLLC and concentrates her practice in the areas of labor and employment. She advises employers concerning general employment and labor law issues; develops, reviews, and updates human resource policies and supporting agreements; and represents employers in local, state and federal legal proceedings including EEOC and state human rights commission investigations, mediations and lawsuits throughout the United States.