Yesterday’s Advisor offered the first three of attorney Stacie Caraway’s tips for avoiding Family and Medical Leave Act (FMLA) abuse. Today, the rest of her tips, plus an introduction to the unique guide just for smaller HR departments—HR Department of One.
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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 tips four to six for dealing with FMLA abuse. [Go here for tips 1 to 3]
Tip #4—Planned vs. Unplanned Leave
It’s important to pay attention to the issue of planned vs. unplanned leave, says Caraway. Explain in your cover letter the difference. Specifically, state that it is the employee’s responsibility to coordinate any planned intermittent leave with his or her supervisor in advance, unless it is not medically possible to do so.
Note that a pattern of “unplanned” intermittent leave may be an indication that the leave actually is and should be treated as “planned” leave (coordinated in advance with the supervisor, possibility of requiring transfer, etc.).
For example, say Joe is approved for unplanned leave but has a pattern of Friday absences. You go back to the doctor and it’s a win-win:
If the doctor says, “Yes, that Friday pattern is medically necessary” (for example, Joe’s wife has to have her chemotherapy on Friday so she has the weekend to recover), Joe’s leave has changed from being unplanned to planned.
If the doctor says no, you’ve got the grounds for fraud.
Tip #5—Moonlighting
Since FMLA is unpaid, it’s not unusual for employees on leave to want to work another job. If you don’t have a moonlighting policy, there’s nothing wrong with it, unless the person is doing something that violates his or her medical restrictions. (That’s not just about working at a job, says Caraway. It’s the same whether it’s a job or refereeing a soccer game or mowing the lawn.)
If you do have a policy against moonlighting while on unpaid leave—and it can’t be just for FMLA—you can enforce the policy.
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Tip #6—An Informed Voice
Contrary to some FMLA “urban legends,” there is an appropriate role for supervisors and even coworkers to help curtail FMLA abuse, Caraway says. Specifically, nothing in the FMLA prohibits supervisors or even co-workers from reporting what they believe to be FMLA abuse or fraud.
But train supervisors and coworkers to say just the facts. For example, “Dear HR, I saw Janice working at Walmart. “(Don’t add, “I told you she was a cheating liar.”)
There is no privilege for those who report suspected FMLA abuse, so caution employees not to add editorial comments that could lead to the employee being individually liable.
You can also help supervisors by providing them with general information about approved FMLA leaves, says Caraway:
- Who the leave has been approved for (employee vs. family member and if so, which family member).
- For what period the leave is approved.
- Whether it is intermittent or continuous.
- Whether it is for planned and/or unplanned events.
- A general description of the illness/injury. You don’t want to be specific (“Jim is bipolar”), but you can say, Jim has “personal issues” or “physical issues” that are approved for FMLA leave.
Intermittent FMLA—just one more constant challenge for HR managers. From hiring to firing, HR’s never easy, and in a small department, it’s just that much tougher.
BLR’s Managing an HR Department of One is unique in addressing the special pressures small HR departments face. Here are some of its features:
- Explanation of how HR supports organizational goals. This section explains how to probe for what your top management really wants and how to build credibility in your ability to deliver it.
- Overview of compliance responsibilities through a really useful, 2-page chart of 23 separate laws that HR needs to comply with. These range from the well-known Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and new healthcare reform legislation, to lesser-known but equally critical rules, such as Executive Order 11246. Also included are examples of federal and state posting requirements. (Proper postings are among the first things a visiting inspector looks for—especially now that the minimum wage has been repeatedly changing.)
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- Training guidelines. No matter the size of your company, expect to conduct training. Some of it is required by law; some of it just makes good business sense. Managing an HR Department of One walks you through how to train efficiently and effectively with a minimum of time and money.
- Prewritten forms, policies, and checklists. These are enormous work savers! Managing an HR Department of One has 46 such forms, from job applications and background check sheets to performance appraisals and leave requests, in both paper and PDF format.
If you’d like a more complete look at what Managing an HR Department of One covers, click the Table of Contents link below. Or, better yet, take a look at the entire program. We’ll send it to you for 30 days’ evaluation in your own office with no obligation to buy. Click here, and we’ll be happy to make the arrangements.