Watch Out—FMLA Certs Are Like a Pre-Nup

If you don’t take advantage of your Family and Medical Leave Act (FMLA) tools, and you don’t do all you could or should do, you have only yourself to blame when there’s abuse, says attorney Stacie Caraway.

Caraway, who is a member of Miller & Martin PLLC in the Chattanooga office, offered six tips for reducing FMLA abuse during a recent webinar sponsored by BLR. Here are her six tips for dealing with FMLA abuse.

Tip # 1—Don’t Accept “Unknown” Certs

FMLA certifications (certs) are like an “FMLA prenuptial agreement,” says Caraway. Once you certify leave based on a cert that says “unknown” or “as needed,” your hands are tied; you can’t change the agreement until that cert expires. That means you’ve given your employee carte blanche to come and go as he or she pleases.

So, make it a rule that you never accept blank responses or “unknown” or “as needed” on certification forms. The only exception would be an “unknown duration of condition” response. Send all other certification forms back to the employee before approving the leave, indicating in writing what exactly is wrong. The FMLA provides the employee with 7 days to resubmit a corrected/completed form.

You also need to express that while no disciplinary action will be imposed during this 7-day correction period, if the employee fails to return a completed form (or if the completed form does not support their stated need for leave) the request for FMLA leave will be denied retroactively—and all that time the employee has been off will count against him or her under the company’s attendance policies.

The FMLA regulations allow you to contact the healthcare provider who completed the form after this 7-day correction period. (The supervisor cannot be your contact person.) However, says Caraway, why would you want to get into the business of babysitting employees in this way? It is the employee’s responsibility to provide a complete, clear, and authenticated form.

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Tip # 2—Use Your Certifications

There are three distinct medical certifications permitted under the FMLA, says Caraway:

• Initial certifications
• Recertifications
• New certifications

Initial Certifications

The initial certification should be requested (give a blank form to the employee) each time an employee requests any type of leave relating to a new potentially FMLA-qualifying event.

Include a DOL Rights and Responsibilities Notice (WH-381) along with the initial certification form.

Note, says Caraway, that you can change the word “may” to “will” on page 1 of the Rights and Responsibilities Notice: “Leave will be denied if the form is not returned/does not reflect sufficient information.”

Recertification

There are four possible purposes for the recertification form:

• To challenge questionable leave use or leave use, which is inconsistent with the employee’s current certification form. You can send a new form to the same doctor: “You originally said ‘unknown,’ now the employee is taking [whatever]; can you now tell us something more specific?”
• To question intermittent leave patterns. “Is every Friday medically necessary?”
• When a previous certification has expired, but the need for leave and condition are ongoing.
• Every 6 months.

Don’t ignore recertification just because paperwork was OK and the person isn’t quite abusing, says Caraway. The doctor may revoke the leave or alter the restrictions.

New Certifications

There are two possible purposes for new certs, says Caraway.

• When the employee’s “duration of condition” expired and there is a break (employee has returned to work), and then a month later the employee is written up and says, “Oh, my illness has recurred.”
• Every 12 months.

So, says Caraway, what’s the difference between an “initial” or “new” certification and a “recertification”?

• Recertifications involve the same healthcare provider; a new cert opens the door to getting a new doctor involved. (Note that you cannot require recertifications on some FMLA military-caregiver leave forms.)
• No second or third opinions are allowed on recertifications.

If your handbook or CBA says that you have to discipline within so many days of an infraction, put in there “except for FMLA leave,” says Caraway.

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Tip #3—Call Ahead/Notice Policies

Develop and consistently enforce call ahead and notice policies, says Caraway.

Create a separate cover letter that is sent along with the FMLA designation notice to any employee who is approved for intermittent FMLA leave reminding them that they are still responsible for complying with their department’s call ahead/notice policies, even for FMLA-covered absences.

If you don’t tell them that, they will assume that they can come and go as they please, says Caraway.

In your call ahead policy, you can designate who to call and the information that must be given. “I’m sick” is not enough. “It’s my FMLA” is not enough.

If the employee doesn’t comply, you can discipline for not following the call ahead policy (assuming you have consistently disciplined others for violating the policy), although you still have to give leave.

In tomorrow’s Advisor, three more tips, plus an introduction to a unique guide just for smaller—or even one-person—HR departments.